Anderson v. Pollard & Co.

Bleckley, Justice.

1. The want of necessary averments in a declaration is not cause for a non-suit; for a non- suit, under our practice, takes place for failure to support the declaration by evidence. We demur to the evidence as insufficient, and move to non-suit the plaintiff. When a declaration is defective, we demur to it, or move, ore terms, to dismiss it. And this distinction in practice is matter of substance; for there is a great economy of time and expense in not waiting for the evidence to come in in order to try the sufficiency of the declaration. The object of introducing evidence is not to aid the declaration, but to prove the truth of it. A motion for a non-suit is aimed at the evidence as compared with what the declaration is, not at the declaration as compared with what it ought to- be. It follows that, in strict law, the court did not commit error in overruling the motion for a non-suit. But if the declaration had been demurred to, or a motion made to dismiss it, or if a plea of misjoinder of defendants had been duly filed, what should have been the action of the court then ? Can a surviving co-partner and the representative of a deceased partner, be sued at law in' the same action upon an account against the partnership? The authority for a joinder of the two, given by the Code in sections 3348 and' 3349, is confined to actions upon notes, bills, bonds or other obligations in writing, signed by the partners. These sections, therefore, do not apply to the present case. But other sections of the 'Code give to the superior court equity powers, and enable it to mould, verdicts and judgments so as to afford equitable relief; and by virtue of these there can be a joinder at law under circumstances that would justify it in equity. Putting the decisions of this court and the authority of approved text books together, we can safely affirm that the survivor and the representative of the deceased may be joined in equity when the creditor can allege and prove the insolvency both of the partnership and the survivor. Some of our own cases seem to have gone on the idea that insolvency of the partnership was the sufficient matter, while the other books we cite appear to treat the insolvency of the survivor (which, strictly speaking, includes that of the partnership, the survivor succeeding in legal title to all the assets) as formerly the decisive test. — See 1 Story’s Eq., §676: Story on Part., §362; Gow on Part., 385, 386; Parsons on Part., 447, 448; 12 Ga., 30; 21 Ib., 155; 15 Ib., 213; 55 Ib., 174. Perhaps, in the state of our own decisions we could not hold it necessary to allege more than the insolvency of the partnership, and that has been done by way of amendment to the declaration. Were it requisite to go beyond this and aver the insolvency of the survivor, that could be done by way of further amendment, as the case goes back for a new trial, on other grounds. We learn from the argument that in point of fact the survivor is insolvent; and if this be so, it ought to be averred and proved, so as to free the point of joinder from all doubt.

2. While the declaration was and is amendable so as to remedy the apparent misjoinder, it was not amendable so as to bring into the bill of particulars, or into the declaration apart from the bill of particulars, a new and distinct contract ■ — a contract of a different class from the one for which the amendment was substituted. It is certain that the item, charged in the bill of particulars under date of November 30, 1872, imported a bailment of dioses in action for collection ; and for this and another item, which latter seems also to have reference to a bailment and the realization of cash therefrom, it was proposed to substitute an account for guano, not bailed, but sold and delivered. In other words, a bailor sues his bailee for not accounting for certain notes, and for not paying over certain money, both belonging to the bailor, and then changes his action into a suit for guano which the plaintiff sold and delivered to the defendant. It seems to us that such a latitude of amendment infringes the rule against introducing by amendment a new and distinct cause of action; and we hold that while it was competent to strike out the two items from the account, it was error to carry the amendment further, and permit the guano account to be substituted in their place. See 56 Ga., 119; 50 Ib., 53.

3. The other amendment was simply idle and useless, and ought to have been rejected for that reason. It introduced nothing new. The action was on an account, with a bill of particulars. The amendment was merely to the effect that the indebtedness was evidenced in writing, signed, etc., but no writing was set out or described. The effort, doubtless, was to bring the case within sections of the Code 3348 and 3349, above cited, but nothing of the kind could be done without declaring upon the writing, whatever it might be ; and to declare upon it by amendment, with an account and bill of particulars as the original cause of action, would be, most probably, to run up against the rule just applied under the preceding head. At all events, the amendment was no more than to say, we can prove our account by some writing signed by the firm, without stating what writing.

4. Under the evidence, we think the letters were sufficiently proved to admit them as the letters of the partnership. They were in the partnership name, and were on the business in which the actual writers were acting for the firm as clerks when the letters were written. This case can be distinguished from that in 53 Geo., 219.

5. The defendants introduced the credits in that portion of the general account which the plaintiffs had stricken out by one of their amendments. It is said that as only credits were introduced, the jury had no right to look at the debits on the same paper, and which were as much a portion of the account as the credits were. ¥e think otherwise. The instrument of evidence was the document, and the jury could look at the whole of it in weighing its moaning and effect.

Judgment reversed.