Ryerson v. Hendrie

Cole, J. 1. Parties: action against partner: constrnctionof statute. The petition alleges that the defendant, who was a member of tbe firm of C. Hendrie & Co., made and delivered to J. S. Everson, a promissory *''•*.«/ note for $656.87 in the copartnership name „ « „ , . ± oí U. Hendrie <fc Co., ot which a copy is ' ... . , A " annexed, and which is past due and wholly unpaid. The sole question presented and discussed by counsel is, whether such a suit can be maintained. [482] That it could not be maintained at the Common law is clear, and indisputed by counsel in this case. Has our statute changed the rule? Rev., § 2764. “When two or more persons are bound by contract, or by judgment, decree or statute, whether jointly only, or jointly and severally, or severally only, and including the parties to negotiable paper, common orders, and checks, and sureties on the same or separate instruments — the action thereon may, at the plaintiff’s option, be brought against any or all of them. When any of those so bound are dead, the action may be brought against any or all the survivors, with any or all of the representatives of the decedents, or against any or all such representatives. An action or judgment against any one or more of several persons jointly bound, shall not be a bar to proceedings against the others.” This section is full of innovations upon the common law, as to the nature or relation of liability, the right of action, and the effect of judgment. The language of the section, when fairly construed, embraces partners. Arqu. 1. Character of firm liability, That the liability of partners is a joint liability, there can be no question. Where the partnership name is signed by one of the partners, to a note made in the due course of the partnership business, thereby, two or more persons are bound jointly, and by the operation of this section, such joint liability is made several, and the right given to bring the action thereon against any or all of them. This is the fair, and not necessarily the liberal, construction of the language of the section. But, by express statute, the provisions of the Code are to be liberally construed. Rev., §§ 2622, 5112, 5113. Arqu.2 statute. The question, however, still remains, whether the provisions of the Code in relation to partnership are aSj when fairly construed, take the [483] liability of partners out of the -operation of the section quoted above. Bev., § 2785. “A copartnership may sue or be sued in its firm name, and when so sued, the individual property of any member of such firm may, on scire facias, be made liable to the judgment, unless he show cause to the contrary. A copartnership may also sue or be sued in the individual names of its members.” At the common law a partnership could not sue or be sued in its firm name simply; but it was requisite to state also the individual names of the members of the firm. Of course, when the names were thus stated, the lien of the judgment, if any, was easily and certainly ascertained so far as the parties were concerned.. The section last quoted gives to the partnership a quasi-corporate power, so far, at least, as the right to sue and be sued in their partnership name. But, since the partners might not be known, and would not be certainly shown by the record of the proceedings or the judgment, it was very necessary, or at least highly proper, that the section conferring this right or privilege should fix also the rights of the parties under it, and this is done by requiring a proceeding on scire facias in order to make the individual property of the members liable to the judgment; and then, as if to avoid the possible misconstruction of this right to sue in the firm name, as applicable to and necessary in all cases of partnership, it is added, that they may still sue and be sued in their individual names. This last clause of the section is, in our view, only declarative of what the law would have been had it been omitted; and yet it is hardly just to speak of it as “ a work of supererogation,” since it is very properly added to prevent a misconstruction of the preceding portions of the section. Nor is it, within any rule for the interpretation of statutes, known to this court, that a declarative clause in one section of a statute [484] as to one- particular, shall have the effect to nullify the plain letter of another section as to another particular, making a material change in the former law. In our view, the language of section 2764 not only justifies us in holding, but requires us to hold, as we do. that the parties to every obligation who are jointly bound therein, whether their joint liability arises from the language of the instrument itself, or results from their previous relations to each other, are liable to be sued severally. This holding is in accordance with the spirit of our previous construction of the same section. Sellon v. Braden, 13 Iowa, 365; Ballinger v. Tarbell, 16 Id., 491. The ruling of the District Court was in conflict with these views, and is therefore held erroneous. Neversed.