Edmund Hyatt & Co. v. Tomlin, 24 N.C. 149, 2 Ired. 149 (1841)

Dec. 1841 · Supreme Court of North Carolina

24 N.C. 149, 2 Ired. 149

EDMUND HYATT & Co. vs JOHN TOMLIN & OTHERS.

Where a plaintiff issued three separate writs on different days against three individuals, endorsing on each writ that it was for the same cause of action and in the same suit as the writs issued against the other two, & upon there turn, they were docketed as one suit and thedefendants appeared and put in pleas thereto; Held that whatever irregularities may have occurred in suing out the writs, these were waived by the defendants accepting a joint declaration and putting in pleas in bar thereto.

The case of Walton v Tomlin & Co., 1 Ired. Rep, 593 cited and approved.

This was an appeal from the judgment of the Superior Court ofLaw of AsheCounty, at Fall Term, 1841,his Honor Judge Bailey presiding. The case appeared to be this. It was an action of debt brought upon a promissory note, executed by John Tomlin in the name of John Tomlin & Co. and payable to the plaintiffs. It was alleged on the part of the plaintiffs that the firm of John Tomlin & Co. was composed of John Tomlim, William P. Waugh and Jas. Harper. Tomlin lived in the County of Ashe, Waugh in Wilkes and Harper in Burke. Three writs were issued from the Superior Court of the County of Ashe, one to the Sheriff of Burke, returnable to Spring Term, 1.839, and executed January 31st, 1839, on which was endorsed, “This v/r^ *s *ssuet^ ^ie same suit and for the same cause of action as two other writs, one against John Tomlin and theother against WilliamP. Waugh to Wilkes, & returnable to Ashe Suporior Court, Spring Term, in favor of the same plaintiffs.” The writ to the Sheriff of Ashe against John Tomlin was issued 26th of Febuaiy, 1839, with a similar endorsement. The other writ to Wilkes does not shew when it issued. The Sheriff endorses that he received it the 7th of March, 1839, and it has an indorsement similar to the others. These writs were returned to Spring Term, 1839, “ Executed,” and docketed by the clerk as one suit. At this term this entry is made upon the docket, to wit, “Harper and Waugh plead severally, general issue, payment and setoff, Stat. Lim. with leave.” At the same term Tomlin employed counsel, who entered no pleas for him. The cause was continued from term to term until Spring Term 1841, when an attempt was made to try it, but there was a mistrial. The counsel for I-Iarper and Waugh at that term proposed to the plaintiffs’ counsel that Tomlin would confess judgment, and this entry is made on the docket; “Defendant Tomlins offers to confess judgment for debt and costs, which is opposed by the plaintiffs5 counsel and refused by the Court.” The cause was continued till Fall Term, 1841, when, coming on to be tried, it was moved by the counsel for Harper and Waugh, that, as the writs had been issued at different times, they were separate suits and should be so entered on the docket; that to make one cause of action, the writs must be issued on the same' day. The court overruled the objection, and held that the cause was properly docketed. The same counsel insisted that the cause was discontinued, because no pleas had been entered for Tomlin, and no judgment had been taken against him. The Court was of a different opinion and overruled this objection. The same counsel proposed again that Tomlin be permitted to come forward and confess judgment, and that they wished to introduce him as a witness for the other two defendants. His motion was opposed by the plaintiffs’ counsel and refused by the Court. The Jury were then charged to try the issues. It was in proof that the defendants composed the firm of Tomlin & Co.; and, that copartnership was in existence in the year 1834, and up to September, 1835, when it was dissolved; that soon after the dissolution of this firm, Tomlin entered into copartnership with one Hardin under the same name of the old firm, viz,, Tomlin & Co.; and that the dissolution of the old and foundation of the new firm were before the note was executed, upon which this suit is brought. It was furthermore in proof by a clerk of the plaintiffs, that Tomlin had purchased goods of the plaintiffs at two several times in the year 1834, in the name of Tomlin & Co. and they had been paid for; and that when the last lot of goods was purchased for which the present note was given, to wit, in November, 1835, by Tomlin, he, Tomlin, gave no notice to the plaintiffs of any dissolution of the firm of Tomlin & Co., and, that the goods were sold, as he supposed, to the same<fivm as the others were in 1834, and the same firm looked to for payment. It was further in proof that the defendants advertised at two store houses in Ashe County, that they had dissolved, and that these advertisements were seen some time about the last of the year 1835 and in the year 1836. The'plaintiffs were merchants in Charleston.

The Court charged the Jury upon this evidence, that if the defendants composed the firm of Tomlin & Co. in the year 1834, and up to September, 1835, and had traded with the plaintiffs, merchants in Charleston, as Tomlin & Co., at two several times and made payment, and Tomlin made a third purchase in the name of Tomlin & Co., and the trade was made in the same way and the same parties looked to for payment; the defendants would be liable to the plaintiffs, although there had been a dissolution of the firm, prior to the last purchase, unless notice had been given to the plaintiffs of the dissolution — -that, if the plaintiffs had notice of the dissolution, then the Jury were instructed to find for the defendants. The defendants’ counsel then asked the Court to instruct the Jury, that, if the plaintiffs did not know that Waugh and Harper were the partners of Tomlin, no notice of the dissolution would be necessary to exonerate them. The Court declined giving this instruction, but told the Jury, that, if the plaintiffs understood that Tomlin had partners in the trade, and goods had been sold to them as a firm, and the firm looked to for payment, the defendants would be liable to the plaintiffs,- although they, the plaintiffs, did not know their names, unless notice of the dissolution was giv-erK rpj.ie defendants’ counsel further objected that the action was- misconceived, and that the plaintiffs should have brought case and not debt.

The Jury found a verdict for the plaintiffs, and judgment being pronounced thereon, the defendants appealed to the Supreme Court.-

Barringer for the plaintiffs;

Boydért for the defendants.

Gaston. J.

Whatever irregularities may have Occurred in the suing out of the writs against the defendants, these were all waived by their accepting a joint declaration, and putting' in piers in bar thereto. His Honor, therefore, very properly overruled the motion for severing the action.

In no material circumstance, as if regards the other matters presented by the case, does it appear to differ from that of Walton v Tomlin & Co., which was decided here at the last term. I Iredell’s Rep. 593.

We see no error and the judgment must be affirmed.

Pee Curiam, Judgment affirmed.