Manufacturing & Mercantile Co. v. Schoolly

1 Tapp. Rep. 271

Opinion

President.

This is an action of assumpsit brought by an association of persons calling themselves the Manufacturing and Mercantile Company of Sandy, for goods sold and delivered, against a partner in the company; the defendant pleads in bar that the plaintiffs are not an incorporated company, and have no right to sue in their copartnership name; the plaintiff admitting that the company is not incorporated, replies that the defendant executed and subscribed articles of copartnership with the plaintiffs, by which he agreed that all suits brought by the company, should be brought in the name of the association; to which replication the defendant demurs generally. The matter of this replication, if well pleaded, can only operate by way of estoppel to the defendant to deny the right of the plaintiffs to sue him in their copartnership name. If a man agrees that A. B. & C. D. may bring a suit against him in the name of E. E., or even in a fictitious name, I do not perceive any objection to the validity of such agreement; it is an advantage to a defendant to have real and substantial persons as plaintiffs on the record, to whom he may resort for his costs if he succeeds in the action; but it is in his power to waive this advantage by silent acquiescence or express agreement: the replication states and the demurrer admits, that the defendant agreed by articles of copartnership, signed by him, that all suits brought by this company should be brought in their copartnership name; he is estopped then to deny their right so to sue. Laws on pleading 130. As to the manner in which this estoppel is pleaded, I think it good in substance, although it is bad in form, 2 Chit. 592 — notwithstanding it is said, 1st Saund. 325 — n. 4 “It is not merely matter of form to conclude an estoppel with relying upon it,” for the replication relies wholly on the matter of estoppel, although the usual and proper form of conclusion is omitted, and such mode of pleading is sufficient on general demurrer. The case of Shelly vs. Wright, Willes 13, is said by Lawes in his treatise on pleading 161, to support this opinion. Not having an opportunity to examine that case I cannot test the correctness of the citation, but the opinion of Lord Ellenborough in the case of Outram vs. Morewood, as to when it is necessary to plead an estoppel, and the ' reason of the thing satisfies my mind — for if the matter relied on is substantially set forth as a bar to the plea, the manner in which it is set forth is nothing but form; nor can it be perceived why an improper conclusion of a plea in case of an estoppel should be bad on general demurrer, when it is not in other cases, 1st Saund. 97, n. 1. 4th East 502-509. Some doubt was entertained whether the defendant should not have pleaded in abatement, Com. Dig. abatement, E., but the law is now settled that “the want of proper plaintiffs in actions on -contract, is an exception to the merits, and is to be taken advantage of either on demurrer, in bar, or on the general issue, but not by plea in abatement, 6th Mass. Rep. 460 Baker vs. Jewel — and 1st Bos. and Pul. 43 — the matter of the plea is therefore properly urged in bar of the action. An objection is taken to the declaration that one partner cannot maintain assumpsit, against his copartner; it appears on the whole of these pleadings, that this suit is brought by a company against a partner in the company, and if this form of action cannot be sustained between such parties, the defendant will be entitled to judgment on the demurrer. There are cases in which one partner may maintain assumpsit against another, as where the contract does not concern the partnership, where there has been a settlement of the partnership accounts, and where there has been a special undertaking, 2d term Rep. 476; 1st Binney 191; the objection is made too soon, for it does not as yet appear but that the plain-y-gfg giye such evidence as will enable them to support their action; such evidence is certainly receivable on this declaration; in every point of view, therefore, in which the case has been presented to me, I think the plaintiffs entitled to judgment on this demurrer. Demurrer overruled.