Church v. Zywert

MR. JUSTICE MATTHEWS

delivered the opinion of the court.

The complaint herein alleges that plaintiff sold to defendant, at an agreed price per pound, approximately 100 head of cattle, to be delivered in lots during the months of August and September, 1916; that the first delivery was made August 1, received and paid for by defendant, but that thereafter, by reason of a decline in the market, he refused to receive and *106 pay for the remainder of the cattle, although plaintiff was at all times ready, willing and able to make the. deliveries, and that by reason of the breach of the contract plaintiff was forced to sell at a loss, on the Billings market, of $1,350.75.

In his brief, counsel for defendant states: “The theory of the defendant, as shown by his answer, was that whatever dealings he had with regard to the purchase of the cattle was had by him with the plaintiff and one Runkle, as partners. This theory is borne out by the evidence of the plaintiff.” The answer, however, merely denies specifically each of the allegations of the complaint, and goes no further. It contains no averment suggesting that defendant had any dealings with either Church or Church and Runkle; nor does it contain any intimation that plaintiff, in his individual capacity, was not the proper party plaintiff.

On the trial defendant was permitted, without objection, to show that while Church purchased the cattle and was sole owner of them, he had an agreement with Runkle that the latter was to assist in disposing of them, and was to receive one-half of the profit, if any, and to share any loss sustained. Both parties having rested, defendant moved for a directed verdict on the ground of nonjoinder of parties, insufficiency of 'the evidence as to the market value at Billings, and that the complaint did not state a cause of action, which latter objection also referred to suit by Church in his individual capacity. The motion was overruled, and the court refused all offered instructions based on the assumption that a partnership existed. The jury returned a verdict for the amount sued for. Defendant moved for a new trial, which motion was denied. The appeal is from the judgment and from the order denying his motion for a new trial.

1. The first assignment of error is predicated on the court’s £1] action in overruling defendant’s objection to the question, “What did you receive for the cattle at Omaha?” While it is true that the measure of damages is deemed' to be the difference between the contract price and the price which *107 the seller could have obtained in the market nearest the place of delivery under the contract (sec. 6081, Rev. Codes; Brazell v. Cohn, 32 Mont. 556 , 81 Pac. 339 ), and therefore the admission of proof of the price received in a different market, alone, for the purpose of fixing the damages, would constitute error, the plaintiff only incidentally proved the actual amount received for the cattle and thereafter introduced evidence of the market value of the cattle in the proper market. There is no error assigned on the insufficiency of this evidence; and the court properly instructed the jury as to the measure of damages under the statute. If, therefore, the ruling of the court was erroneous, it could not have affected the substantial rights of the parties, and must be disregarded. (Sec. 9415, Rev. Codes; State ex rel. Nipp v. District Court, 46 Mont. 425 , Ann. Cas. 1916B, 256, 128 Pac. 590 .)

2. The remaining assignments are directed to the action of the court in its refusal to direct a verdict, refusal to give certain offered instructions, and in overruling the motion for a new trial, and are all based on the contention that the evidence disclosed a partnership. They will therefore be considered together.

The facts on which defendant relies were known to him at [2, 3] the .time he drew and filed his answer. They do not appear on the face of the complaint. Under our Code, if a defect in parties appears on the face of the complaint, it must be taken advantage of by demurrer (Rev. Codes, sec. 6534), and the demurrer must point out specifically the defect relied upon (section 6535). (Poe v. Sheridan County, 52 Mont. 279 , 157 Pac. 185 .) When not so appearing, the objection may be taken by answer. (Section 6538.) “If no objection is taken, either by demurrer or answer, the defendant must be deemed to have waived the same.” (Section 6539.) These provisions have been in effect since territorial days, the only change being that in the last provision quoted the word “must” has been substituted for that of “shall,” and were construed in the case of Parchen v. Peck 2 Mont. 567 , where the court *108 said: “The evidence shows that the Northwest Transportation Company was a firm * * * composed of the appellant, Durfee and Coulson. Durfee has since died. It is claimed that the court erred in proceeding against Peek, and that Coulson should have been joined with him. * * * The appellant did not set forth in his answer that Coulson was a member of the firm, or that there was a nonjoinder of parties. Can judgment be entered against Peck under the issues?” The court then quotes the provisions of the Civil Practice Act referred to, and continues: “These sections have been interpreted in the following cases: Fosgate v. Herkimer M. Co., 12 N. Y. 584 ; Zabriskie v. Smith, 13 N. Y. 336 ; Voorhies’ Code, sec. 118. According to these authorities, we hold that the appellant waived any objection that Coulson was not a party by his omission to point out the same.”

The provisions of our Codes and the above decision are in accord with the general rules on the subject, noted in Cye. as follows:' “A defense that the plaintiff is not the real party in interest and hence has no right to sue must be specially pleaded in bar. * * * The rule usually adopted under the Code provision, that the answer may set forth as many grounds of defense as the defendant may have, is that nonjoinder of a party may be pleaded together with matter in bar. The objection that there is a defect of parties must be presented in the answer in a clear and distinct manner. In analogy to a plea in abatement which must be so specific as to omitted parties as to give plaintiff a better writ, an answer setting Up a defect of parties must state the omitted parties precisely and truly and facts should be alleged showing that they are necessary parties. * * * So an answer setting up nonjoinder of plaintiffs must distinctly set up such defense and spéeifically show wherein the defect consists and who should have been joined as parties.” (31 Cyc. 219, 220, 221, and cases cited.)

In Conklin v. Fox, 3 Mont. 208 , action was brought -on an account for goods sold, alleging that Fox with two others were *109 partners. Service was had on Fox alone, and he filed his separate answer, denying the allegations of the complaint. It was contended by counsel, as here, that the question of misjoinder was raised by the answer, but the court held that, by his failure to plead the fact “appellant waived his objection to the misjoinder of the parties defendant,” that the allegation of a partnership would be treated as surplusage, and that the entry of judgment against appellant alone was proper.

In the case of Zabriskie v. Smith, 13 N. Y. 322 , 64 Am. Dec. 551 , the question was raised as to whether, under the rule stated above, the court could dispose of the subject matter of the suit in its entirety; the court held that: “Partners are joint tenants of all partnership effects; * # ' * joint tenants are not owners of separate shares. Each joint owner has title to the entii’ety. * * * I am, therefore, of opinion that where the defendant permits one or more of several joint tenants to sue alone * * * the recovery should be for the damages sustained by all the joint tenants.”

Runkle was personally present and took part in the trial, asserting no rights therein and disclaiming any interest in the cattle; if a partner, he was a joint tenant with Church; and, Church having secured judgment for all damages sustained, Runkle could not thereafter maintain an action against appellant. As was said in the ease of Gilland v. Union Pac. Ry. Co., 6 Wyo. 185 , 43 Pac. 508 , the plea of misjoinder or nonjoinder of parties was regarded at common law, and is still regarded under the Codes as a dilatory defense of which, to be availing, timely advantage must be taken. If the facts established on the trial are true, defendant-is'in no worse position than he would be in an action by the joint tenants, and his substantial rights have not been affected. Having failed to plead a nonjoinder of parties plaintiff, defendant waived the objection, and the lower court was justified in disregarding his motion for a directed verdict, and in its refusal of the offered instructions on the subject.

*110 We find no substantial error in the record, and the judgment and order of the district court are therefore affirmed.

Affirmed.

Associate Justices Holloway, Hurly and Cooper concur. Mr. Chief Justice Brantly, being absent, takes no part in the foregoing decision.