John I. Adams & Co. v. Nelson

1 Mann. Unrep. Cas. 112

• Court: Supreme Court of Louisiana
• Decided: July 1, 1880
• Docket: No. 6137
• Status: Published

Opinion

Manning, C. J.

This is manifest error. No exception or plea had been filed, and the court cannot supply one. The judgment of the lower court is based upon the variance of proof and allegation, but the answers admitted that advances had been made by the plaintiffs, and did not deny the composition of the firm as alleged in the petition, and these admissions of record cannot be recalled in argument.

Where a defendant in his answer admits certain allegations of plaintiffs, who are suing as a partnership, to be true, it is a waiver of his right to take any advantage of any variance between the names of the persons stated in the petition as composing the partnership, and those disclosed in the evidence, unless he has by special plea put that variance at issue. Gebecke v. Stauby, 1 La. Ann. 17.

But there is another reason that should not be overlooked, of special applicability to this case. The act of mortgage secured the payment of the notes recited in it in favor of any future holder of them. Concede that the firm of Jno. I. Adams & Co., as constituted when the notes were executed, was composed of different persons from those who were members of it when the suit was instituted, as was certainly the case, the new firm was owner of them then, and the stipulation as to any future holder, entitled them to sue upon them in the name of the firm as newly constituted.

Judgment reversed and for plaintiffs.