Chapman v. Early

Martin, J., delivered the opinion of the court. The defendant, Early, is appellant from a judgment, by which the plaintiff has recovered damages, in consequence of the loss which he has incurred by the purchase of a large quantity of bacon, from the defendants, a considerable part of which was unmerchantable. The case was tried by a jury, who found a verdict for the plaintiff, and a close examination of the evidence has not enabled us to discover any thing which authorizes our interference with the verdict. The appellant’s counsel, however, has contended in this court : 1st, That the judgment was erroneously given in solido; there is no averment that the defendants are thus liable, nor prayer for a judgment in solido. 2d. The citation was served on but one of the defendants; they were not associated together as commercial partners, and could not be cited in the manner provided in the Code of Practice, 198. 3d. There is no issue as to but one of the defendants, and a curator should have been appointed to the other. I. The judgment is, in our opinion, supported by the pleadings. The petition avers, that the defendants are trading under the firm of Early & Amelung, and the purchase is evidently a commercial one, being for four hundred and odd boxes of bacon. This shows a liability .in solido ; and the judgment prayed thereon was properly rendered as one of the same character as the claim, to wit, one in solido. II. The appellant was cited and arrested; his co-defendant has not appealed. We cannot, therefore, inquire, whether he was legally cited. III. The appellant joined issue with the plaintiff, and his co-defendant not being before us, we cannot inquire whether a curator was or ought to have been appointed to him. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.