Chan Yo Chow v. Sing

California Court of Appeal Dec 5, 1927 No. Docket No. 5698.Published

Before: Knight

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Holding. A defendant waives the objection of a defect of parties plaintiff by failing to raise it through demurrer or answer, allowing the plaintiffs to recover the full amount due despite the absence of other potentially interested partners.

Issues

Whether the retirement of partners from a firm necessitates an assignment of accounts to the remaining partners to maintain an action for debt.
Whether a defendant may challenge a defect of parties plaintiff for the first time on appeal after failing to plead it by demurrer or answer.
Whether a plaintiff's right to maintain an action is dependent upon the defendant's ability to assert a counterclaim.

Disposition. affirmed

Quotations verified verbatim against the opinion

“In the absence of a plea of defect of necessary parties plaintiff, one of several parties jointly interested in a claim may recover the whole amount due”

“the right of a plaintiff to maintain an action against a defendant is not affected by nor dependent upon the right of the defendant to assert a counterclaim.”

[279]

KNIGHT, J.

Plaintiffs brought this action to recover the purchase price of goods sold and delivered. The complaint contained two counts, one declaring on an open account and the other on an account stated. The allegations were in the usual form, it being alleged among other things that plaintiffs were copartners and that they had duly filed and published a certificate of copartnership to do business under the fictitious name of Quong Lee & Company. Judgment was rendered in plaintiffs’ favor and the defendant appeals.

During the trial defendant admitted the sale and delivery of the goods to him, but claimed there, as here, that plaintiffs were not the vendors, and that since they had neither alleged nor proved an assignment to them of the indebtedness sued upon they were not entitled to a judgment based thereon.

The facts are as follows: For several years preceding the commencement of the action a number of Chinese conducted a copartnership business under the fictitious name of Quong Lee & Company, the personnel of the partners having changed from time to time. Defendant purchased the goods in question from said copartnership during the years 1922 and 1923, at which time it consisted of forty members. In 1925, and prior to the commencement of this action, thirty-two members thereof retired, but the business continued to be operated under the partnership name by the remaining eight partners and two others who are joined with said eight remaining members as plaintiffs herein. The evidence does not show, however, when the two new partners entered the firm, nor whether they acquired their interests by purchase from retiring ¡members or bought in after the retirement of the latter.

In view of the foregoing facts defendant makes the legal contention that the retirement from the firm of the thirty-two members in 1925 operated as a dissolution of the then existing copartnership, and the establishment of a new one consisting of those remaining, and that therefore, in the absence of an assignment of the account to those continuing in the operation of the business, the original forty members alone were entitled to maintain an action thereon. However, defendant did not plead a defect of parties plaintiff

[280]

Chan Yo Chow v. Sing

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KNIGHT, J.

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