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Benton v. Winner

23 N.Y.S. 413 Court N.Y. Gen. Term Decision date 1893-05-09 English

Delivered by HEEEICK, J.

Contents

Majority

p. 413
(69 Hun, 494.)
BENTON v. WINNER et al.
(Supreme Court, General Term, Third Department.
May 9, 1893.)

Headnote

Action—Misjoinder oe Causes.
The complaint in an action for the price of goods sold to a partnership averred that in 1885 the firm was composed of defendant W. and one B.; that in 1887 defendant D. and one S. became members of the firm, and that in 1888 S. and B. retired from the firm, and the business, continused by defendants (W. and D.,) who assumed the debts of the firm; and that plaintiff had sold goods to the firm in each of said years. Held, that three causes of action were alleged, since the firm was composed of-three sets of partners at various times, and therefore there was a misjoinder of causes, as the agreement of defendants to pay the firm debts did not apply to the debts of the firm when it was composed of W. and B.
Appeal from special term.
Action by Joseph G-. Benton against Benjamin W. Winner and Charles A. Draper. From a judgment sustaining a demurrer to the complaint, plaintiff appeals.
Affirmed.
Argued before MAYHAM, P. J., and PUTHAM and HEEEICK, JJ.
Alpheus Potts, for appellant.
T. F. Bush, for respondent Winner.
Marvins & Hanford, for respondent Draper.

This is an appeal from a judgment rendered upon a demurrer interposed by the defendant Charles

p. 414
to the complaint of the plaintiff. The plaintiff, in his complaint, states that, during the year 1885, Benjamin W. Winner and one John Babcock were copartners in business under the firm name and style of B. W. Winner & Co., and as such copartners carried on the business of buying and selling wood; that on or about the 1st day of January, 1887, the said firm of B. W. Winner & Co. received into said copartnership, as equal partners, Albert H. Sewell and Charles A. Draper; that the name and style of said firm remained unchanged; that on or about the 1st day of April, 1888, Albert H. Sewell and John Babcock sold out all their interests in the said copartnership, and in the business of the firm, to the defendants, Winner and Draper, who assumed and agreed to pay all the outstanding debts of said firm, and continued the business of buying and selling under the firm .name of B. W. Winner & Co., and they continued the business of such copartnership until on or about the 1st day of November, 1888. The plaintiff further states that between the 1st day of January, 1885, and the 1st day of November, 1888, he sold and delivered to the said firm of B. W. Winner & Co. wood, in each and every said years, amounting to about the sum of $5,859.58. At different times between the same dates the said firm of B. W. Winner & Co. paid the plaintiff about the sum of $4,201.58, leaving a balance due the plaintiff on the 1st day of November, 1888, of $1,658, exclusive of interest, for which sum he demands judgment against the defendants jointly and separately.

It will be observed that while, in form, the plaintiff sets forth but one cause of action, yet, from his statement of facts, there are three separate causes of action involved. While all his sales are alleged to have been to the firm of B. W. Winner & Co., still, as matter of fact, his sales frojn 1885 to the 1st day of January, 1887, were to whatever persons that firm was composed of,—Benjamin W. Winner and John Babcock,—and they alone were responsible to him for the sales made to the firm during each of those years. From the 1st day of January, 1887, until the 1st day of April, 1888, the firm was composed of Benjamin W. Winner, John Babcock, Albert H. Sewell, and Charles A. Draper. They were responsible for merchandise sold to the firm between those dates, and such sales constituted a separate and distinct cause of action in favor of the plaintiff against such persons. The new copartners in the' firm, Sewell and Draper, not having agreed to pay the debts of the firm as it existed from 1885 until the 1st day of January, 1887, they are not responsible to the plaintiff for the goods sold by him to the firm during those years. Serviss v. McDonnell, 107 N. Y. 260 , 14 N. E. Rep. 314 . From the 1st day of April, 1888, until the 1st day of November of the same year, the copartnership was composed of the defendants Winner and Draper, and the merchandise sold by the plaintiff to the firm during that time constituted a third cause of action. It follows from this that there is a misjoinder of causes of action in the complaint; that all of the causes of action set forth in the complaint do not exist against all of the defendants. That as to the first cause of action,—that is, for the

p. 415
merchandise sold from 1885 to January, 1887,—there is a misjoinder of parties defendant. The defendant Draper, not being a member of the firm during that period, and not having assumed to pay its debts, when a new firm was established, January 1, 1888, is not liable therefor; the persons liable for the merchandise sold tc the firm up to that date being Benjamin W. Winner and John Babcock. All these matters appear upon the face of the complaint. The judgment sustaining the demurrer should be affirmed, with costs, with leave to the plaintiff to plead otherwise upon payment of costs.. All concur.

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