Hatzel v. Moore

120 F. 1015, 1903 U.S. App. LEXIS 5320

• Court: U.S. Circuit Court for the District of Southern New York
• Decided: January 6, 1903
• Status: Published

Opinion

WHEEEER, District Judge.

The complaint sets up for a first cause of action a partnership liability of the defendant and one Frederick C. Whitney for $2,403.94 to a lithographing company, assignor to the plaintiff, on which Whitney paid to that company “the sum of eight hundred and fifty dollars, in full satisfaction and discharge of one-half thereof, which the said company then and there accepted and received of and from the said Whitney in full satisfaction and discharge of all claim therefor, and right or cause of action thereon, against him, the said Whitney, alone, and released him alone from his liability upon said claims, and reserved all of its said company’s rights, claims, demands, and cause of action therefor for the balance remaining dué thereon, one thousand two hundred and one 97/ioo dollars, against the said defendant herein, Albert H. Moore, who accordingly thereupon remained indebted to the said lithographing company in that amount, prior to and at time of the assignment hereinafter alleged, with interest from March 13, 1897,” and several individual notes of the defendant for a second cause of action.

The defendant has demurred to the first cause of action for non-, joinder of the other partner, and to the complaint for misjoinder of individual with partnership liabilities.

The state code of procedure allowing separate composition by joint debtors (section 1942) expressly excludes partnership liabilities until after dissolution, which is not alleged, and the first cause of action seems to be left as at common law. By that law, as understood, the discharge of all joint debtors is commensurate with that of any, and mere payment of a part of a debt is not a sufficient consideration for a release of the whole. According to that and the allegations here, half the debt is released as to both, and half remains against both, and the demurrer for nonjoinder, which is admitted to be a proper mode of reaching it here, must be sustained.

The joinder of partnership and individual causes of action in the same complaint would seem to be bad, if each separately would be good; but sustaining the demurrer to the partnership count eliminates that, and leaves the other cause of action by itself, single and good.

Demurrer to first cause of action sustained, and to complaint overruled.