Strother's Administratrix v. Strother

Buchanan, J., delivered the opinion of the Court. The first error assigned is to the action of the court in overruling the demurrer to the bill. The specific ground of demurrer assigned in the trial court was that the bill “is multifarious, in that it undertakes to assert in the same suit two separate and distinct claims: (1) the claim' of Sidney Strother in his own right for a balance due him on a settlement of the partnership accounts of the firm of W. A. Strother & Son; and (2) a claim of the said Strother as administrator of Jennie L. Strother, deceased, against said firm of [427] W. A. Strother & Son, this claim being merely a claim for a debt and enforceable only in an action at law.” If the debt due the complainant as the administrator of Jennie L. Strother had been a purely legal demand, and one of which a court of equity had no jurisdiction, its assertion would not have rendered the bill multifarious; for in order to sustain the objection of multifariousness because the bill contains two different causes of action against the same person “two things must concur: first, the different causes of action must be wholly distinct; second, each ground must be sufficient as stated in the bill.” Snavely v. Harkrader, 29 Gratt. 112, 126, and authorities cited. It appears from the allegations of the bill that the debt due the complainant as administrator was a debt due from the firm of W. A. Strother & Son, of which the complainant was a member. The complainant had, therefore, no remedy at law for its collection; for no one can be both plaintiff and defendant in the same action at law, nor can an action be brought against certain members of a partnership, leaving out the others who compose it,, upon a contract entered into with the firm. Wright v. Michie, 6 Gratt. at page 357, 358; Aylett v. Walker, 92 Va. 540, 542, 543, 24 S. E. 226. The only ground of demurrer assigned in the trial court being the one named, no other ground could be considered by it (Code, section 3271), and, of course, no other can be considered by this court (except where the trial court has no jurisdiction of'the case) ; otherwise the appellate court could reverse the lower court for errors it had not committed. “All the other assignments of error are,” in the language of the petition for appeal, “predicated on the single ground of defense that the claim asserted in the bill is a legal and not an equitable claim, and that the court should not therefore have taken jurisdiction of it.” The contention of the appellant is that the claims asserted by the complainant in his own right and as administrator of Mrs. Jennie L. Strother are in fact on© [428] and the same demand, and against the estate of the appellant’s decedent, and not a debt dne from the firm of W. A. Strother & Son. If this were true the bill ought to have been dismissed upon the hearing. It appears that on the 15th day of December, 1893, a copartnership was formed between William M. Strother, the appellant’s husband and. decedent; Sidney Strother, the complainant; C. B. Robertson and W. M. Stokes, under the firm name of W. A. Strother & Son, for the purpose of conducting a wholesale and retail drug business in the city of Lynchburg. That business had theretofore been carried on by W. A. Strother, the father of William M. Strother and Sidney Strother, under the style of W. A. Strother & Son. The new concern acquired the stock, fixtures, etc., of the old concern (except debts due it), in which Mrs. Jennie L. Strother, the widow of W. A. Strother and the mother of the complainant, had a one-fourth interest under the provisions of her husband’s will. The members of the new concern entered into an agreement with her, under their hands and seals, on the 15th day of - December, 1893, by which she agreed to and did loan them the value of her interest in the stock, fixtures, etc., in the old concern, which was fixed at the sum of $8,915.82, and which sum, with interest payable monthly, they bound themselves as partners to pay her on the 31st of December, 1895, or upon the dissolution of the partnership if that should occur before that date. By a subsequent agreement under seal that loan was extended for the period of two years upon the same terms and conditions as the original agreement provided for. A short time before the dissolution of the partnership, which took jdace as of January 1, 1898, Mrs. Jennie L. Strother died, leaving her estate, including the debt due to her from the partnership, to her son, the complainant, who was named as her executor. Immediately upon the dissolution of the partnership a joint stock company was formed under the name of the Strother Drug Company. Its stockholders were the members of the firm of W. A. Strother [429] & Son, except Robertson, who sold his interest in the partnership assets to his copartner, Stokes. The partnership assets, except the debts dne it, were transferred to the joint stock company and stock issued to each stockholder in proportion, it seems, to his interest in the partnership assets. The contention of the appellant is that when the joint stock company was formed the debt due the complainant, as executor and sole legatee of Mrs. Strother, which was due and unpaid, was provided for, so far as the partnership was concerned, by individual arrangements between him and his copartners, W. M. Strother and W. M. Stokes, by which they, respectively, undertook and agreed to pay the said debt, and that thereafter there was no liability upon the partnership for its payment. The commissioner who was directed to settle the partnership accounts of W. A. Strother & Son, and to ascertain and report what sum or sums, if any, were due to the complainant, either as partner or as executor of Mrs. Strother, reported among other things that the appellant’s decedent was indebted to the firm of W. A. Strother & Son in the sum of $4,464.22, and that said firm was indebted to the complainant in the sum of $4,430.21. The appellant excepted to the commissioner’s report, upon the ground that the evidence showed “that there had been a final settlement of the partnership affairs of W. A. Strother & Son, and a complete adjustment of accounts among the partners; and that the indebtedness, if any, of the late W. M. Strother to the complainant was an individual debt originating in an agreement between them, whereby, for the purpose of forming the Strother Drug Company, the former was allowed to overdraw his share, at the expense of the said Sidney Strother (the complainant), in consideration of which he was to pay him the amount of the excess.” The court overruled this exception and confirmed the report of the commissioner upon that subject. There is some evidence tending to sustain the contention of the appellant that there had been a novation of the agreement between Mrs. Strother [430] and the firm of W. A. Strother & Son, and that the debt due her estate had been assumed by W .M. Strother and W. M. Stokes individually. Without discussing the evidence in detail it is sufficient to say that the proof is not of that clear and satisfactory character which is required of a party who relies upon a satisfaction and discharge of an'original debt by the creation of a new obligation. Fidelity L. & T. Co. v. Engleby, 99 Va. 168, 37 S. E. 957, and authorities cited. We are of opinion, therefore, that there is no error in the decree appealed from and that it should be affirmed. Affirmed.