Oldham v. Henderson, 4 Mo. 295

Opinion of the court, was delivered by McGirk J. As to.the question whether the court ought to have granted a new trial, we are of opinion the court did right to refuse it. It is only in those cases where the circuit court clearly erred, that this court ought to interfere; some members of this court would find the same verdict the court below did, and some would not. This diversity of opinion, is of itself a sufficient reason to prevent our interference.

With regard to the point whether the court ought to have allowed the defendant a deduction of $4, 25, which the plaintiff received of the defendant, we are of opinion that it was properly rejected, and disallowed.

There was some proof that some money was received, but the amount was only proved by the admission of the plaintiff, and the same admission that fixes the amount, expressly fixes the fact that the, money was advanced received as a loan; for this reason, the court could not allow it as a payment, nor could it be allowed as a set off, unless the defendaut had before, or at least at the trial, put in his claim to it by way of set off. The record does not show that any such thing was done. The plaintiff in error has made one point of law, arising from the evidence on the trial.

It appeared on the trial, that Oldham and Herring were partners, and that the work was done for both; the suit was brought against Oldham, and the charge in the plaintiff's account was against Oldham only. The defendant offered to set this matter up in abatement of the plaintiff’s action, on the ground that where all the defendants are not sued in cases of copartnership and joint contracts, the nonjoinder may be pleaded in abatement The court refused this TT , , . . On the part oí Henderson, the 7,

section oi the act concerning contracts and promises, (R. code, 117,) is re-0n* which says. “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 [iable.” We are of opinion that this statute fully covers the case. The case of Rice v. Shults from Burrow, has been cited by the other side, to .show that the case at bar, is not covered by the statute.

That case proves this, that when one of a partnership is sued alone, he my say the contract is joint, and claim to have all the partners sued together, by pleading the matter in abatement, or he may consider the contract as several, waive his right to plead in abatement, and plead to the merits, and cannot claim on the trial, a non suit, on the ground of the nonjoinder. But the statute says if the assumption of partners is joint, anyone of the partners may be sued alone.

This declaration of the statute cannot be true, if it be true that when so sued alone, he may plead the nonjoinder in abatement, and defeat the plaintiff’s action.

But it is argued that the statute does not apply to this case, because it treats of joint assumptions only of partners, and that at common law, every joint assumption of partners is not joint only, but joint and several; this is only a verbal criticism,-, before this statute, the defendant might elect to consider the contract joint, by his plea in abatement, or he might waive that benefit and let the plaintiff proceed on the contract as on a several one; the statute takes away the right of the defendant and gives it exclusively to the plaintiff. The judgment of the court below is affirmed with costs.