Benton v. Winner — 52 N.Y. St. Rep. 628

Majority

p. 628

Joseph C. Benton, App'lt, v. Benjamin W. Winner et al., Resp'ts.

(Supreme Court, General Term, Third Department,

Filed May 9, 1893.)

Headnote

Pleading—Misjoinder—Partnership.

The complaint alleged that in 1885 W. and B. were copartners under the name of W. & Co. That in 1887 S. and D. were taken into said firm, and that in 1888 S. and B. sold out to defendants, who continued the business; that the name of the firm continued the same; that between 1885 and 1888 plaintiff sold goods to said firm, and demanded judgment for a balance claimed to be due. Held, that the complaint in fact stated three separate causes of action; that the sales were made to the persons composing the firm at the time the goods were delivered, and that there was a misjoinder of causes of action and parties.

Appeal from order and interlocutory judgment entered thereon, sustaining demurrer to complaint.

Alpheus Polls, for app’lt; T. F. Bush, for resp’t, Winner ; Marvins & Hanford, for resp’t, Draper.

This is an appeal from a judgment rendered upon a demurrer interposed by defendant A. Draper to complaint of the plaintiff.

The plaintiff in his complaint states that during the year 1885, Benjamin W. Winner and one John Babcock were co-partners in business under the name and style of B. W. Winner & Co., and as such co-partners 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 co-partnership 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 co-partnership, 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 co-partnership 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. 0. Winner & Co., still, as matter of fact, his sales from 1885 to the 1st day of January,

p. 629

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 ; 12 St. Rep., 485 .

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 ail of the defendants.

That as to the first cause of action, that is for the merchandise sold from 1885 to January 1,1887, 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 to the firm up to that date being Benjamin W. Winner ánd 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 defendant to plead otherwise upon payment of costs. ,

Mayham, P. J., and Putnam, J., concur.