Fisher Textile Co. v. Perkins

Williams, J.:

The judgment should be reversed, with costs, and the demurrer sustained, with costs, with leave to plaintiff to plead over upon payment of such costs within ten days after service of a copy of this decision and the taxation of the costs.

The important question raised by the demurrer was whether there was a defect of parties plaintiff in the action.

The action was upon a contract in writing, a copy of which was annexed to the complaint. There were three parties of the first part, one party of the second part and two parties of the third part to the contract. One of the parties .of the first part brought this action against the parties of the third part, and the defendants insist, hy their demurrer, that the other two parties of the first part' were necessary parties plaintiff in the action.

The two parties of the first part, not made plaintiffs, are by the agreement styled, £< The Sealback Underwear Company ” and “ The Fisher Knit Goods Company.” There is no statement in the agreement nor allegation in the complaint as to these two concerns, how they were organized, except that they are corporations,' the nature of their business, or what connection they or their business had with the plaintiff or its business, aside from the business referred to in the contract. The complaint, in fact, makes no reference to the two parties omitted, in any way, aside from annexing a copy of the contract to the complaint. It alleges it is itself a corporation, the nature of its business, and that the plaintiff, the defendants and Browne, the person named in the contract, as party of the second part, made the agreement, a copy of which is annexed to the complaint, and that-under that contract sales of goods were made by Browne as agent of plaintiff, amounting to $14,573.02, upon which payments had been made amounting to $9,465.22, leaving a balance of $5,107.80, for which judgment is demanded. The defendants claim this contract was joint and not several or joint and several as to the parties of the first part, and, therefore, one of the parties alone cannot maintain this action. In form the contract is a joint one. There is nothing in its terms from.the commencement to the end of it that suggests a several liability, and there are no allegations in the complaint suggesting a several liability, unless it be the allegation that the plaintiff made the contract "with the parties of the second and third parts instead of alleging the contract was made by the three parties of the first part, and that the goods were sold by the plaintiff instead of the three parties of the first part. The contract was made by the three parties of the first part and provided only for sales by the three parties jointly. The sales being under the contract the allegations must be regarded as following the terms of such contract.

It may be well to suggest that many statements made in respondent’s points with reference to the three parties of the first part are of facts not appearing on the record. The record fails'to show that the three parties of the first part are separate arid distinct corporations manufacturing separate and distinct classes of underwear. The rule of law by which this class of cases is to be governed is correctly stated in Emmeluth v. Home Benefit Association (122 N. Y. 130, 134): “ The action follows the nature of the interest, and when that is several, separate actions may be maintained even if the language of the promise is joint.” In that case the language of the promise was construed to be several, or at least joint and several, and, therefore, the action was properly brought by one only of the several promisees. Here, however, the language was joint, and cannot be construed as several or joint and several. In order, therefore, to permit an action to be maintained by one alone, it should appear by the allegations of the complaint and proof on the trial that the nature of the interests of the three parties of the first part to the contract was several and not joint. No such allegations were found in the complaint. In Spencer v. Wabash R. R. Co. (36 App. Div. 446) the complaint alleged a several contract with each member of the theatrical company for the transportation of his baggage, and, therefore, it was a good pleading in the action brought by one member of ,the company only. In Booth Bros. v. Baird (83 App. Div. 495) the question was not one of pleading, but arose on appeal from the judgment after a trial. The contract was in form joint. It was contended, however, that upon the evidence the liability was several only. The court held it joint only and rendered judgment accordingly. It may very well be that allegations may be inserted in the complaint in this action truthfully that will enable the plaintiff to maintain the action without making the other concerns parties plaintiff, but in its present form the complaint is objectionable in that it shows a joint contract by the three concerns and only one is made a party plaintiff.

The demurrer was, therefore, improperly overruled, and the judgment must be reversed.'

Spring and Hiscock, JJ., concurred ; McLennan, P. J., dissented in an opinion in which Stover, J., concurred.