Mott v. Hall, Moses & Co.

*By the Court—

BROWN, C. J.,

delivering the opinion.

In this case, Mott and Bowers were sued jointly on the note as owners of the boat. Bowers in his own proper person filed a plea, and was sworn to it, denying that the defendants ever made the note or authorized any one to make it. The plea commences thus: “and now comes the defendant, and defends, etc., and says that defendants did not make,” etc., and it is signed by Bowers alone. We hold, this was a plea by Bowers only, and not by Bowers and Mott. If it had been signed by both, or by counsel for both, and sworn to by one, we' do not-decide that it would not have been sufficient, as the defendants were sued as joint contractors. But such was not the case.

Section 3402 of the Revised Code enacts that, “no person shall in his plea or answer be permitted to deny any deed, bill, single or penal bond, note, draft, receipt, order, or other instrument in writing, which is the foundation of the action, unless he shall make affidavit of the truth of such plea or answer, at the time qf filing, the same. The note in this case was the foundation of the action, and though Mott’s name did not appear upon it, he was sued upon it as one of the owners of the boat, and therefore as one of the makers. He did not file any plea under oath, denying that he, or any one authorized by him, made the note, and it was not, therefore, necessary for the plaintiffs to do more than produce the note in evidence, to entitle them to a judgment against him, as he sét up no sufficient defence.

Oh the trial, plaintiffs failed to prove that Bowers, who had filed the plea under oath, was one of the owners of the vessel, and they struck his name from the declaration by way of amendment.

The defendant Mott, who alleged that Bowers was a joint owner, then tendered a plea in abatement, on the ground that Bowers, a joint owner and contractor, was not a party to the suit. If this plea had been tendered as ‘to Bowers alone we think it would have been admissible, though not filed at the first term, as required by Section 3404 of the Code, as it *could not, from the nature of the case, have been filed sooner. But the plea was not tendered in this shape. It was a plea that Bowers, Pendergrast and Bennett, were all joint owners and contractors, which fact it is said was not known to defendants’ counsel till that term of the Court.. It may be true, that the counsel did not know anything of the interest of Pendergrast and Bennett, till that term of the Court. But Mr. Mott must be presumed to have known at the first term whether Pendergrast and Bennett were or were not joint owners and contractors with him; and as he did not file the plea in abatement as to them at the first term, he was too late at the trial term. And as he joined Bowers, Pendergrast and Bennett, all in the same plea, and it was. bad as to the two last, it was bad as a whole, and the Court did not err in refusing to entertain it.

The witness Stamper swore that it was the universal custom, for the last thirty years, for clerks to sign notes similar to the one offered in evidence, for the necessary expenses of boats on the river, but it was not customary to sign them for the building of the boat, or for a building and repair account, except by direction of the Captain. Bennett, the clerk, swears he signed this note by authority of the Captain. It is objected that the defendant was not bound by this custom, and that this evidence should have been ruled out. We think the evidence was admissible. The custom of a business or trade is binding when it is of such universal practice that it becomes by implication a part of the contract. If, as the witness stated, it had been the universal practice for thirty years, for clerks to make notes for necessary expenses, and to make contracts by direction or authority of the Captain for building or repair account, we think the owners of this boat are presumed to have had knowledge of that custom, and to have given the clerk of their boat, by implication, authority to make such contracts as were universally made by other clerks of other boats running on the same river.

We can not say that there was no cause of objection to the answers to the cross-interrogatories, for want of sufficient fullness. But as the case was made out by the note against *Mott, we will not grant a new trial on that account. There were a great many questions propounded in the same Interrogatory, and some of them were not fully answered. We will state here, however, that in such case the Court will not scan the answers as closely as if each question were a separate Interrogatory. If the whole answer, taken together, is a substantial reply to the whole Interrogatory, though each separate question in it may not be separately answered, we will hold it sufficient.

Upon the whole, we are satisfied the judgment of the Court below should be affirmed.