Crane v. Ring & Smith

[59] The opinion of the court was delivered by Horton, C. J.: Action brought by Ring & Smith against Erank E. Crane on an account for goods sold and delivered to him, at his request, amounting to $1,282.57, with. 7 per cent, per annum on the sum of $1,185.37 from the 30th of December, 1886, and, on $97.20, interest from October 7, 1887. Crane answered, admitting the correctness of the items making up the $97.20 which accrued in 1887, and alleged a tender of "that amount before the action was commenced, and offered to bring it into court and pay plaintiff. He denied, however, “all and singular, the allegations contained in the petition,” and “the items in the account, save and except those mentioned and admitted in the first paragraph of the answer.” In the fourth paragraph of the answer, he “alleged that about the 27th of December, 1886, plaintiffs delivered to the firm of Crane & Toms, of which the defendant and G. V. Toms were the members, the goods valued at $1,185.37,” and then set forth a special contract between the plaintiffs and the firm of Crane ■& Toms as to those items, and full performance on its part. He asked judgment for costs, “and that he might go hence without day.” Plaintiffs replied by a general denial. Trial before the court with a jury; verdict for plaintiffs for the whole demand; motion for a new trial overruled, and judgment on the verdict. Defendant below excepted, and brings the •case here. Upon the trial, Ring & Smith offered evidence tending to prove that the goods in the account, amounting to $1,185.37, were sold and delivered on the 30th day of December, 1886, to Erank E. Crane, and not the firm of Crane & Toms. On the part of the defendant below, evidence was offered tending to prove that the firm of Crane & Toms received the goods to sell or trade off, under a special contract alleged in the answer. The court charged the jury, among other things — “That if there was an actual sale and delivery of the goods set forth in the petition on the 30th of December, 1886, either to Crane or to the firm of Crane & Toms, the plaintiff was [60] entitled to recover, although there was a partnership existing between Crane and Toms at the time of the purchase, and the firm made the purchase.” It is contended that the answer of defendant below was in the nature of a plea in abatement, and that as Frank E. Crane only was sued, the plaintiff was not entitled to recover, if Crane & Toms were partners, and as such partners purchased the goods in the account sued on. It was said in Williams v. Muthersbaugh, 29 Kas. 730, that “In this state the statutes provide, among other things, that ‘All contracts which by the common law are joint only shall be construed to be joint and several;’ and‘In all cases of joint obligations and joint assumptions of copartners or others, suits may be brought and prosecuted against any one or moré of those who are so liable;’” (Comp. Laws of 1879, p. 209, §§ 1-4;) and “Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants.” (Civil Code, §396; see also Alvey v. Wilson, 9 Kas. 405; Pullam v. Abrahams, 29 id. 725; Smith v. Straub, 41 id. 7.) Under the statute, as all contracts with partners are joint and several, each and every partner is liable to pay the whole claim or debt. In what proportion a copartner should contribute, is a matter merely among the partners themselves. We do not think, under the statutes and practice prevailing in this state, that the allegation in the answer of the purchase by the firm of Crane & Toms was sufficient to defeat the action, either as a plea in abatement or otherwise. The most that can be said in favor of the defendant below is, that there was a variance between the petition and proof, if it be assumed that the purchase of the goods mentioned in the account was made by the firm of Crane & Toms. But § 133 of the civil code provides that no variance between the allegations in a pleading and the proof is material, unless it has actually misled the adverse party to his prejudice. Clearly, the defendant below was not misled. As he is liable upon the account, whether he purchased the goods individually, or as a member of the firm of Crane & Toms, judgment was properly rendered [61] against him. It does not appear that Crane asked or requested, by motion or otherwise, that G. V. Toms, or the firm of Crane & Toms, should be made parties defendant. Under the common-law practice, the rulings of the district court could not be sustained, but the statutes of our state permit a party who is personally liable upon a contract, or as a partner, to be sued individually. The judgment of the district court will be affirmed. All the Justices concurring.