Eastin v. Roberts, Carpenter & Co.

THE COURT.

The above action was commenced by Dorothy D. Eastin against defendants George D. Roberts, H. R. Plate and Lewis G. Carpenter, who were copartners doing business under the name of Roberts, Carpenter & Co., to recover on a promissory note executed to her by the firm. Defendant Roberts answered separately, alleging his adjudication as a bankrupt. Defendant Carpenter by his answer alleged various defenses, and therewith filed a pleading, which he designated as cross-complaint, against Howard G. Park and others. Therein it was alleged that Park and the other cross-defendants named had for a sufficient consideration

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promised cross-complainant to pay the Bastin note, and their failure to do so, all to his damage in the amount thereof. Park moved to strike the cross-complaint on the grounds that the relief sought did not relate to or depend upon the note; that he was not a necessary party to the decision of any of the issues raised by the answers to the Bastin complaint, and that he was not a party to the contract alleged in her original complaint. The motion was denied, and he filed a demurrer with an answer to the cross-complaint, denying, among other things, the alleged promise.

The trial court entered judgment in favor of plaintiff Bastin against Carpenter and his firm for the amount prayed. It also found against Park on the issues presented by the cross-complaint and his answer thereto, and entered judgment against him and in favor of Carpenter for the amount of the note with interest. Park has appealed from that part of the judgment.

The business known as Roberts, Carpenter & Co. was carried on under that name by a succession of partnerships. It was established on November 1, 1927, the date of execution of the note in suit. On February 15, 1928, Plate withdrew, and the others continued under new articles, whereby they agreed to perform the obligations of the old firm—the note being one—in consideration of the transfer to them of the firm’s assets. On April 11, 1928, George C. Harris entered the firm, and new articles, identical in substance with those last mentioned, were signed. Later L. S. Thomas became a partner, the obligations of the former partnership being assumed by a like provision. Following this, appellant Park joined the firm, and Harris and Carpenter withdrew. The new articles contained the following provision: “First: That the parties hereto do hereby enter into a partnership for the purpose of transacting a brokerage and investment banking business in stocks, bonds and other securities under the firm name and style of Roberts, Carpenter