Progress Blue Ribbon Farms v. George

SiebecKeb, J. There is no dispute but that the plaintiff’s cause of action is predicated on breaches of the contracts it made with the defendants A.. H. George and B. M. Striplin as copartners doing business under the firm name of the Mississippi-Alabama Live Stock Association, located at Meridian, Mississippi. It appears that A. H. George was served with summons in this action and that A. H. Bartelt was by agreement of the parties appointed agent of Striplin and George for the service of legal process in litigation arising out of the contracts made between the parties. An examination of plaintiff’s complaint discloses that its alleged claims for a recovery are based on the alleged defaults of the members of this copartnership to perform the four contracts attached to the complaint as Exhibits A, B, O, and D, and that it demands judgment against the two copartners, George and Striplin, who signed the contracts, and the other defendants as members of such copartnership upon their joint copartnership liability. These facts appeared without dispute and entitled plaintiff to recover judgment if it established the causes of action set forth in its complaint against the copart-ners on their joint liability under the contracts in question. Brawley v. Mitchell, 92 Wis. 671, 66 N. W. 799; sec. 2884, Stats. The circuit court correctly held that plaintiff’s cause of action, if established upon the trial, would have entitled plaintiff to judgment against all the defendants upon their alleged joint partnership liability. It is contended by the plaintiff that the court erred in awarding judgment in favor of the defendants on the counterclaim interposed by the defendant George. This claim is made on the ground that this defendant’s answer is not made in behalf of the copartnership and the other members of the [232] firm, but that it shows on its face and in substance that it is the individual answer of the defendant George. , The phraseology of the allegations is not harmonious throughout the pleading; parts of it speak in terms of the answering defendant individually and other parts in terms referable only to the partnership transactions. But the substance and content of all the allegations of the answer which admit, deny, or otherwise specifically answer the allegations of the complaint admit of but one interpretation, namely, that the answer embraces only copartnership matters which arise out of and are connected with the transactions included in plaintiff’s complaint. The same is true of the matters alleged in the counterclaim. It is manifest from the facts and circumstances alleged in the pleadings in the action that the issues involved included nothing aside from the transactions arising out of and relating to the matters embraced in the four contracts entered into between plaintiff and George and Striplin as a copartnership doing business as the Mississippi-Alabama Live Stock Association. The answer of the defendant George must be interpreted in the light of these facts and circumstances and the alleged relationship of the parties. Viewing the answer and counterclaim in such light, it is manifest that they are interposed in behalf of the copartnership and all of the members thereof as well as in behalf of the answering defendant. The right of defendant George to answer and counterclaim in behalf of the firm and his copart-ners 'and himself is recognized in Elliott v. Espenhain, 54 Wis. 231, 11 N. W. 513. The plaintiff’s cause of action arises out of the joint obligation of the members of the copartnership who contracted with plaintiff, and the counterclaim is founded on the very consideration upon which plaintiff rests its claim, and hence of necessity arises out of the contract and transaction connected therewith. Since the plaintiff had the right to judgment against all the members of the firm liable under the con [233] tracts, it follows that the defendants so jointly liable to plaintiff were entitled to counterclaim for any legal claims they had against plaintiff arising out of such contracts and connected with the subject of the action. The claim that none of the defendants except George and Btriplin can be held to have been served with summons and hence are not properly parties before the court, does not defeat their right as members of the copartnership to have George and Btriplin appear for them and defend and to secure judgment in favor of all the members of the firm. ’ The court had jurisdiction of the subject matter of the action and of all the parties properly before it by virtue of the proceeding upon the record. It is considered that the court properly awarded judgment in defendants’ favor upon the alleged counterclaim and the verdict of the jury. All questions involved in this appeal appear from the record and hence there is no necessity for a bill of exceptions in the case, and appellant’s application for a stay of proceedings must be denied. By the Oourt. — The judgment is affirmed.