Speyers v. Fisk — 10 N.Y. Sup. Ct. 706

Majority

p. 706

ALBERT SPEYERS, Appellant, v. LUCY D. FISK, as Executrix, etc., of JAMES FISK, Jr., Deceased, Respondent.

Headnote

Partners—liability of —joint and several debtors—right of creditor.

AH contracts with partners are joint and several, and each partner is liable-to pay the whole amount of the claim thereunder, but each partner is not liable to a separate action.

The plaintiff alleged that, at the request of James Fisk, Jr., and one Jay Gould, he rendered services for their benefit and on their account, for which they jointly and severally promised to pay him. The complaint contained no allegation that Fisk and Gould were partners. Held, that a demurrer to the complaint, on the ground that the debt was due from Fisk and Gould as partners, could not be sustained.

Appeal from an order sustaining a demurrer to the complaint. The complaint alleges that the plaintiff was a gold broker, and “ he performed certain work, labor and services for James Fisk, Jr., now deceased, and one Jay Gould, at their request, and for their benefit, in and about the purchase of gold coin, for the said Fisk and Gould, and on their account,” for which services the said Fisk and Gould then and there jointly and severally promised and agreed to pay the plaintiff.

The defendant demurred, upon the grounds, first, that there was a defect of parties defendant, and, second, that the complaint did not state facts sufficient to constitute a cause of action against the defendant.

Albert SUekney and I. V. French, for the appellant.

Jamies M. Ball, for the respondent.

The proposition upon which the learned justice at Special Term sustained the demurrer in this case, is undoubtedly correct. All contracts with partners are joint and several, and every partner is liable to pay the whole debt, as said by Lord Mansfield; but their responsibilities are not joint and several, so as to subject each to a separate action.^[2] Each partner is bound for the whole, until the debt is paid.

p. 707

The plaintiff alleges, that, at the request of James Fisk, Jr., and one Jay Gould, he rendered services for their benefit and on their account, for which they jointly and severally promised and agreed to pay him his brokerage. There is no allegation that they were partners. The charge is, that each agreed to pay for the service rendered to both, and each became liable for the whole debt, as soon as the service was performed. If it were otherwise, there would be no vitality in the separate promise, and the plaintiff’s remedy and the defendant’s liability, would be dependent upon the rules governing joint obligations. The plaintiff would then, James Fisk, Jr., having died, be obliged to exhaust his remedy against Jay Gould, unless he were insolvent, before he could resort to the representatives of the deceased joint debtor. Where the contract was joint and several, under the system which prevailed prior to the Code, the right of action existed against either or both. The plaintiff was at liberty to proceed against the parties jointly, or each separately though their interest was joint;^[2] but, if the action were brought against both, the plaintiff was, by a common-law principle, held to have elected to consider the demand joint, and must have failed if he did not establish the joint promise,^[3] This rule was abrogated by sections 136 and 274 of the Code, which provided that judgment might be taken against any of the several defendants, if the plaintiff would be entitled to judgment, had the action been against him alone,^[4]

The contractors, Fisk and Gould, being by the terms of the contract separately liable, the action could be brought against either, or the personal representatives of the one dead, and the order made at Special Term was therefore erroneous, and should be reversed.

Davis, P. J., and Daniels, J., concurred.

Order reversed, and demurrer overruled, with costs; with leave to defendant to answer within twenty days, on payment of costs.

* Chitty’s Pl., Vol. 1, p. 49.

† † Parker v. Jackson, 16 Barb., 33 , and cases cited.

‡ ‡ Parker v. Jackson, supra; McIntosh v. Ensign, 28 N. Y., 169 ; Brumskill v. James, 1 Kern., 294; Marquat v. Marquat, 2 id., 336; Harrington v. Higham, 15 Barb., 524 .

Footnotes

* Robertson v. Smith, 18 Johns., 459 ; Van Tine v. Grane, 1 Wend., 524 .