G-antt, P. J.
This is an action by the executrix of R. T. Willis, deceased, to recover one half of the amount of two notes and interest executed by the firm of Willis & Barron, composed of R. T. Willis and P. J. Barron toR. T. Willis in his lifetime. The petition alleges the partnership of Willis & Barron in 1890, the execution of the notes, the death of Willis in 1891, the [454]*454qualification of plaintiff as executrix of the estate of R. T. Willis, an administration of the partnership estate of the firm, its insolvency and the final settlement thereof, and the discharge of plaintiff as administratrix thereof, and concluded with a prayer for judgment for one half of the amount of said notes and interest.
Defendant admitted the partnership, the execution of the notes, the appointment of plaintiff as executrix, but averred there had never been an accounting between defendant and R. T. Willis, and charged that Willis had drawn out partnership assets in excess of his share to an amount greater than the notes, and prayed for the appointment of a referee, and for an accounting. The reply was a general denial of the answer.
There was a judgment for plaintiff in the circuit court from which defendant appealed to the Kansas City Court of Appeals. That court upon a division of opinion certified the cause to this court. Appellant insists upon two propositions to reverse the judgment. First, that an action at law can not be maintained by one partner upon a promissory note executed to him individually by the partnership of which he is a member. Second, that the court erroneously excluded evidence tending to show that R. T. Willis in his lifetime drew out of the partnership funds, in excess of his share, more than enough to pay off his share of the notes sued on.
I. At common law partnership contracts were construed to be joint only, not joint and several. As a consequence of this rule in actions by or against partners it was necessary that all the partners should join as. plaintiffs or be joined as defendants. A further consequence of this doctrine was that a partner could not sue a firm of which he was a member on a note executed by the firm to himself, and if a person were a [455]*455member of two firms, one of said firms could not sue the other at law, as the names of all the members of the firm, whether appearing in the firm name or not, must be set out in the declaration, or petition, and likewise the names of all the partners of the firm sued must all be set out, and the result would be a party suing himself which the law would not tolerate. 1 Chitty PL, pp. *47 and *48; 1 Daniel, Neg. Inst., sec. 354. The remedy in such cases was in equity. This difficulty of suing at law ceased, however, when a negotiable instrument passed to a third party because in such case the indorsee could sue all the makers. Although one partner could not sue his firm, or a firm having a common partner with another firm, could not sue the other at ¡atv, no difficulty was found by the courts of chancery in enforcing notes given by a firm to one of its members, or by one firm, to another firm, having a common partner, for equity treated the different firms for the purposes of substantial justice precisely as if composed of strangers or as if they were corporate companies. 1 Story’s Eq. Jur., secs. 679, 680 and 681. All the law writers and all the adjudged cases place the disability of one partner to sue his firm upon its note to him upon the grounds that a man can not contract with himself, and because it was deemed absurd to permit a party to be both a plaintiff and defendant in the same action, and for the further reason that until the partnership affairs were adjudged, and the balance struck it could not be said one partner was indebted to another. Judge Bliss, in his Code Pleadings, sec. 91,' says: “At common law where there was a joint obligation or undertaking, in an action upon.it, all who thus join must be made defendants........ Thus contracts made by partners with third persons are joint and all must be joined in an action.”
Recognizing that this rule existed at common law, [456]*456and the grounds upon which it was based, we are confronted with our statute, section 2384, Revised Statutes 1889, which provides that “all contracts which by the common law are joint only, shall be construed to be joint and several,” and section 2387 which further provides that “in all cases of joint obligations and joint assumptions of copartners or others, suits may be brought and prosecuted against any one or more of those who are so liable.” Now the partner holding the firm’s note payable absolutely to himself, at common law was under no disability to sue his firm, save only that the note, being a joint promise, he was necessarily compelled to sue himself; but since the statute now makes the note the several contract of each member of the firm, and makes each partner liable insólido, the payee is no longer under the necessity of suing himself, and hence so far as the question of parties to pleadings is concerned he can sue either or all of the other partners without infringing the common law rule of pleading. Likewise as the note is the several contract of each partner no legal objection can be raised to the validity of the contract itself, as they are clearly adversary parties capable of contracting each with the other and binding each other. While the payee of such a note could not be both debtor to, and creditor of himself, at common law, it is not true that the payee can not be creditor, and the other members of the partnership, who borrow his money and give him a partnership note therefor, can not be his debtors, each being severally liable thereon for the whole amount of the note. To defeat such a note after a partner has loaned his firm out of his individual assets the amount of money it represents, merely because he is a member of the firm, is to defeat the plain purpose of the parties and the justice of the case, whereas to hold all the partners bound except the payee himself is to effectu[457]*457ate the truth of the transaction and charge the real debtors with their obligation. So far as the loan of the money to the firm by one partner is concerned it is as to him at least an individual, and not a firm transaction, to be settled upon an accounting in equity, or in the probate court under our statute, if one partner dies.
„ This conclusion does not militate against the well settled doctrine that an action of assumpsit at law can not be maintained by one partner against another for a balance owing on the firm account in the absence of an adjustment of the partnership affairs. Scott v. Caruth, 50 Mo. 120; Bond v. Bemis, 55 Mo. 524; Smith v. Smith, 33 Mo. 557.
To say that one partner could not sue another at law is stating the rule too broadly even at common law. Chief Justice Marshall, in Van Ness v. Forrest, 8 Cranch, 30, called attention to this error. In that case it was ruled that a promissory note given by one member of a commercial company to another member for the use of the company would support an action at law by the promisee in his own name against the maker, notwithstanding both parties were partners in that company, and the money when recovered would belong to the .compapy, the Chief Justice saying: “The principle that a company can not sue its members does not apply to the case, nor does the principle that a partner can.not sue a partner on a partnership transaction apply to any case where a note is given for money, not to a firm, but to an individual member.” So in Mitchell v.
Free access — add to your briefcase to read the full text and ask questions with AI
G-antt, P. J.
This is an action by the executrix of R. T. Willis, deceased, to recover one half of the amount of two notes and interest executed by the firm of Willis & Barron, composed of R. T. Willis and P. J. Barron toR. T. Willis in his lifetime. The petition alleges the partnership of Willis & Barron in 1890, the execution of the notes, the death of Willis in 1891, the [454]*454qualification of plaintiff as executrix of the estate of R. T. Willis, an administration of the partnership estate of the firm, its insolvency and the final settlement thereof, and the discharge of plaintiff as administratrix thereof, and concluded with a prayer for judgment for one half of the amount of said notes and interest.
Defendant admitted the partnership, the execution of the notes, the appointment of plaintiff as executrix, but averred there had never been an accounting between defendant and R. T. Willis, and charged that Willis had drawn out partnership assets in excess of his share to an amount greater than the notes, and prayed for the appointment of a referee, and for an accounting. The reply was a general denial of the answer.
There was a judgment for plaintiff in the circuit court from which defendant appealed to the Kansas City Court of Appeals. That court upon a division of opinion certified the cause to this court. Appellant insists upon two propositions to reverse the judgment. First, that an action at law can not be maintained by one partner upon a promissory note executed to him individually by the partnership of which he is a member. Second, that the court erroneously excluded evidence tending to show that R. T. Willis in his lifetime drew out of the partnership funds, in excess of his share, more than enough to pay off his share of the notes sued on.
I. At common law partnership contracts were construed to be joint only, not joint and several. As a consequence of this rule in actions by or against partners it was necessary that all the partners should join as. plaintiffs or be joined as defendants. A further consequence of this doctrine was that a partner could not sue a firm of which he was a member on a note executed by the firm to himself, and if a person were a [455]*455member of two firms, one of said firms could not sue the other at law, as the names of all the members of the firm, whether appearing in the firm name or not, must be set out in the declaration, or petition, and likewise the names of all the partners of the firm sued must all be set out, and the result would be a party suing himself which the law would not tolerate. 1 Chitty PL, pp. *47 and *48; 1 Daniel, Neg. Inst., sec. 354. The remedy in such cases was in equity. This difficulty of suing at law ceased, however, when a negotiable instrument passed to a third party because in such case the indorsee could sue all the makers. Although one partner could not sue his firm, or a firm having a common partner with another firm, could not sue the other at ¡atv, no difficulty was found by the courts of chancery in enforcing notes given by a firm to one of its members, or by one firm, to another firm, having a common partner, for equity treated the different firms for the purposes of substantial justice precisely as if composed of strangers or as if they were corporate companies. 1 Story’s Eq. Jur., secs. 679, 680 and 681. All the law writers and all the adjudged cases place the disability of one partner to sue his firm upon its note to him upon the grounds that a man can not contract with himself, and because it was deemed absurd to permit a party to be both a plaintiff and defendant in the same action, and for the further reason that until the partnership affairs were adjudged, and the balance struck it could not be said one partner was indebted to another. Judge Bliss, in his Code Pleadings, sec. 91,' says: “At common law where there was a joint obligation or undertaking, in an action upon.it, all who thus join must be made defendants........ Thus contracts made by partners with third persons are joint and all must be joined in an action.”
Recognizing that this rule existed at common law, [456]*456and the grounds upon which it was based, we are confronted with our statute, section 2384, Revised Statutes 1889, which provides that “all contracts which by the common law are joint only, shall be construed to be joint and several,” and section 2387 which further provides that “in all cases of joint obligations and joint assumptions of copartners or others, suits may be brought and prosecuted against any one or more of those who are so liable.” Now the partner holding the firm’s note payable absolutely to himself, at common law was under no disability to sue his firm, save only that the note, being a joint promise, he was necessarily compelled to sue himself; but since the statute now makes the note the several contract of each member of the firm, and makes each partner liable insólido, the payee is no longer under the necessity of suing himself, and hence so far as the question of parties to pleadings is concerned he can sue either or all of the other partners without infringing the common law rule of pleading. Likewise as the note is the several contract of each partner no legal objection can be raised to the validity of the contract itself, as they are clearly adversary parties capable of contracting each with the other and binding each other. While the payee of such a note could not be both debtor to, and creditor of himself, at common law, it is not true that the payee can not be creditor, and the other members of the partnership, who borrow his money and give him a partnership note therefor, can not be his debtors, each being severally liable thereon for the whole amount of the note. To defeat such a note after a partner has loaned his firm out of his individual assets the amount of money it represents, merely because he is a member of the firm, is to defeat the plain purpose of the parties and the justice of the case, whereas to hold all the partners bound except the payee himself is to effectu[457]*457ate the truth of the transaction and charge the real debtors with their obligation. So far as the loan of the money to the firm by one partner is concerned it is as to him at least an individual, and not a firm transaction, to be settled upon an accounting in equity, or in the probate court under our statute, if one partner dies.
„ This conclusion does not militate against the well settled doctrine that an action of assumpsit at law can not be maintained by one partner against another for a balance owing on the firm account in the absence of an adjustment of the partnership affairs. Scott v. Caruth, 50 Mo. 120; Bond v. Bemis, 55 Mo. 524; Smith v. Smith, 33 Mo. 557.
To say that one partner could not sue another at law is stating the rule too broadly even at common law. Chief Justice Marshall, in Van Ness v. Forrest, 8 Cranch, 30, called attention to this error. In that case it was ruled that a promissory note given by one member of a commercial company to another member for the use of the company would support an action at law by the promisee in his own name against the maker, notwithstanding both parties were partners in that company, and the money when recovered would belong to the .compapy, the Chief Justice saying: “The principle that a company can not sue its members does not apply to the case, nor does the principle that a partner can.not sue a partner on a partnership transaction apply to any case where a note is given for money, not to a firm, but to an individual member.” So in Mitchell v. Wells, 54 Mich. 127, one partner sued another on a note, and the defense was that it was connected with partnership transactions and dependent on them, and paid by credits. It was insisted there as here, that the remedy was in equity alone, but the court said, “It is a legal obligation in [458]*458form, and therefore may be sued at law according to its terms. . . . There is no case that we are aware of where an obligation legal in form can not be sued at law.”
So in Morrison v. Stockwell's Adm’r, 9 Dana (Ky.), 172, the action was upon a promissory note payable to James N. Morrison, executed by “Morrison & Stock-well,” of which firm Morrison, the plaintiff, was a partner. The Court of Appeals of Kentucky through Chief Justice Robertson, said: ‘ ‘The fact that Morrison (the plaintiff) was both obligee and apparent obligor, should,, per se, have no other legal effect than that of making the note the single obligation of Stockwell. . . . Morrison’s incapacity to make a contract with himself did not affect the capacity of Stockwell to make a binding contract with him on one side and in their joint names on the other side. The only reason why Morrison was not bound as an obligor did not apply to Stoelaoell. There was then a legal obligation and it was of course the single obligation of Stockwell.” In Bonnaffe v. Fenner, 6 Sm. & M. (Miss.), 212, the Supreme Court of Mississippi said: “It is laid down as a general rule that where one partner has a claim upon his copartner for a sum of money due on account of the partnership, but not constituting the balance of a separate account, or a general balance of all accounts, he can not recover by action at law;” But this rule has its exceptions. A prominent exception takes the place of the rule when the sum sought to be recovered is separated from the partnership account. Collyer on Part. 158 and 148. The making of a promissory note by several partners in favor of another is an acknowledgment of a separation of the sum from the partnership account. Smith v. Lusher, 5 Cow. 688, and the same court followed this precedent in Sturges v. Swift, 32 Miss. 239, and Anderson v. Robertson, 32 [459]*459Miss. 241; Merrill v. Green, 55 N. Y. 270; Walker v. Wait, 50 Vt. 668; Scott v. Campbell, 30 Ala. 728; 2 Lindley on Part. 565.
But the question is settled in this State by the decision of this court in Faulkner v. Faulkner, 73 MA. 327, to which we have not been referred, in which it was unanimously held that the note being the joint and several contract of each maker, the plaintiff could recover at latv and would not be driven into equity, the court, while admitting the common law rule, saying, “This principle, however, does not apply even at common law except where the contract is joint, and not where it is (as are all contracts in this State) both joint and several.” Smith v. Gregory, 75 Mo. 121.
II. Having disposed of plaintiff’s right to sue, it remains only to be seen whether the answer set up an equitable defense requiring the case to be heard by the chancellor. It will be observed that defendant admits the partnership and the execution of the note. He pleads payment and a counterclaim of an unadjusted partnership account. He does not state any account nor show cause why he can not. The defense of payment is of course a legal defense and was heard. Whatever may be the law in other jurisdictions it is the settled law of this court,that an unsettled partnership account can not be pleaded as a counterclaim. Wright v. Jacobs, 61 Mo. 19; Leabo v. Renshaw, 61 Mo. 292; Jones v. Shaw, 67 Mo. 667; Berthold v. O’Hara, 121 Mo. 88.
There is moreover no sufficient pleading of any equitable defense. Upon principle, and the weight of authority we think it is clear that a mere suggestion of an accounting, and an-equitable defense, will not oust a court of law of its jurisdiction, but a party must go further and state some specific ground for invoking the jurisdiction of equity. This the defendant has not done. A careful reading of the evidence offered by [460]*460defendant convinces us that the judgment was for the right party and there is no merit in the defense, either in the answer, or the facts attempted to be shown.'
The judgment of the circuit court is affirmed.
Sherwood, J., concurs.’ Burgess, J., absent.