Hawks v. Munger — 2 Hill & Den. 200

Majority

p. 200

Hawks vs. Munger.

Headnote

J. H., a member of a partnership consisting of three persons, endorsed a promissory note with the firm name, by consent of J. D. H., one of his copartners, but without the authority of the other. Held, in an action on the noté against J. H. alone, that a plea in abatement alleging the non-joinder of J. D. H. could not be sustained.

To sustain a plea of non-joinder, it must appear that there is neither a greater nor less number of defendants than the plea sets up.

Error from the mayor’s court of the city of Rochester. The action was by Hunger against John Hawks as endorser of a promissory note. He pleaded in abatement the non-joinder of Jabez D. Hawks as a co-defendant. Hunger replied that Jabez was not a joint contractor. On the trial it appeared that the endorsement was in the name of “ Hawks & Brothers”—that it was made by John Hawks—that the firm of Hawks & Brothers consisted of John, Jabez D. and Daniel Hawks—that John had authority from Jabez, but not from Daniel, to make the endorsement, and that it was,made for the accommodation of the makers. A verdict was rendered for Hunger, the plaintiff below; and, after judgment, the defendant below sued out a writ of error.

E. D. Smith, for plaintiff in error.

C. L. Clarke, for defendant in error.

By the Court,

The defendant below had authority from Jabez and not from Daniel, to make the endorsement. Thus the legal effect of the act was to bind himself and Jabez, two of the defendants, only. That made

p. 201

out the defence, if the defendant can be received, after endorsing the three names, to prove that there were only two. I think he is estopped to do so. As to him, we must take it -that all three were, as he asserted, bound; and then his plea in abatement fails. The plaintiff has a right to say, “ as between you and me, I claim that you should be holden to the fact asserted by you in your endorsement, by which you misled me to believe there were thr.ee joint contractors, instead of two. To that I gave credit; and upon that I have acted. Nemo allegans suam turpitudinem est audiendus.” The plaintiff may thus head the defendant either way. Had the plea been that two ' contractors were not joined, the plaintiff might have insisted that only one was necessary. The maxim cited cannot be satisfied, if we allow the party who did the wrongful act to avail himself of it in any shape so as to injure his adversary.

To sustain a plea of non-joinder, it must appear in evidence that there is neither a greater nor less number of defendants than the plea sets up.

Judgment affirmed.