Derbigny v. Mondelli

Simon, J., delivered the opinion of the court. This case is now before us on a rehearing. We have carefully revised our former decision, and after a renewed investigation of the points of fact and of law, submitted to our reconsideration, we have come to a different conclusion. Plaintiff, as holder of a promissory note made to his order, signed “ Mondelli & Reynolds,” alleges, that the defendants are bound, in solido, for the payment of said note, and prays judgment accordingly; he also prays for general relief. Mondelli alone having been cited, filed an answer, in which, after admitting the signature, he denies his liability, in solido; the firm of Mondelli & Reynolds being a particular partnership. On these issues, the parties went to trial, and the judge of the City Court having given judgment in favor of the plaintiff against Mondelli, for the whole amount of the note, the defendant took the present appeal. An admission which we find in the record, by which it is admitted that a certain witness could prove that Mondelli & Reynolds were particular partners, renders it unnecessary to notice a bill of exceptions taken to the opinion of the court, refusing to grant a continuance applied for by defendant’s counsel, on the ground of the absence of a witness who was to prove the same fact. On the trial, plaintiff introduced a witness to prove the consideration of the obligation, and that the same was made by Mondelli, and for his benefit. The testimony was objected to by defendant, on the ground that plaintiff, in his petition, prays for judgment against Mondelli, insólido, as a member of the firm of Mondelli & Reynolds, and that evidence could not be admitted to prove what was not asked for in the petition. The judge a quo, received the evidence, and the defendant took his bill of exceptions. We think the city judge did not err. It is true the plaintiflj in his petition, seeks to obtain a judgment against Mondelli, [499] in solido with Reynolds, as he was probably under the impression that they were commercial partners; and had the defendant limited his defence to the general issue, plaintiff might perhaps have been unable to recover in this action; , ; .... , , , . i not only on the principle that the onus probandi being thrown upon him, the allegata must agree with the probata, and therefore he could not have been allowed to prove a different contract or obligation ; but also because solidarity being never presumed, he should have been bound to prove it, and would have failed in the evidence. In this case, however, the defendant himself puts in issue the particular partnership, out of which, he contends, this contract arose; and thereby admitting his liability for one-half, he must be prepared to shpw that both partners had consented to the obligation, or that it was contracted for the benefit of the firm ; without such proof, if it was shown that he had signed the note in the name of the partnership, there would be no doubt of his being bound for the whole, as he had no right to bind his partner, except in the manner pointed out by law. The judgment prayed for by plaintiff, though one in solido, would virtually have the same effect, as, in both cases it would be for the w7hole debt. In this state of the pleadings, and under the issue made up by defendant, it became neces- . . . . . . ft *it , . sary to inquire mío the origin of the debí, and into the consideration of the obligation ; and, .in our opinion, the evidence offered to extend Mondelli’s liability asa particular * partner, to the whole of the claim, and not to one-half only, as resulting from his answer, was properly admitted by the lower court. Where judgment is prayed, in solido, against the members of a firm, and one of the defendants denies his liability, in solido, his firm being only a particular, not a commercial partnership; he must show that both partners consented to the obligation, or that it was contracted for the benefit of the firm. So, where judgment is asked against the members of a firm, in solido, and for general relief; and one of them denies that he is thus liable, it being only a particular partnership ; evidence of the consideration of the obligation will be admitted, to show his liability for the whole claim, as having been contracted for his benefit. . . Under this view of the question, we think that on the merits, the judgment of the City Court is sufficiently supported by the evidence. Mondelii signed the obligation in r J ° ° the name of the firm.; its consideration was for bricks sold him by the plaintiff; it is not even shown that Reynolds ever had any knowledge of the contract. A letter signed by Mondelli, and read in evidence without objection, proves also that , , . _T J , , , , . he was to pay the note sued on. He asks therein the plaintiff’s indulgence, speaks of his prospect 6f being able to pay [500] towards the end of the month; alludes to the plaintiff’s kindness towards himself, and promises to see plaintiff on his return from Mobile, &c. &c. It seems to us that the plaintiff is clearly entitled to recover. It is, therefore, ordered, adjudged and decreed, that the judgment of the City Court be affirmed, with costs.