Harrison v. McCormick
Before: McKee
Synopsis
Cross-complaint — What is—Parties—Causes op Action.—A cross-complaint is a pleading t>y a defendant to an action, which contains a statement of facts sufficient to constitute a cause of action against the plaintiff in reference to the transaction upon which the original action is founded, or affecting property to which the original action relates. The parties named in the cross-complaint must he parties to the original action, and the cross-complaint itself must contain all the facts necessary to constitute a cause of action in favor of the defendant and against the plaintiff in the original complaint.
Id.—Cannot Exist in Favor op Stranger to Action. — A cause of action existing in favor of the defendants and a stranger to the original action, and not in favor of the defendants alone, cannot he asserted by way of cross-complaint.
Id.—Pleading Improperly Designated as Cross-complaint—Admission of Service. —A pleading improperly designated as a cross-complaint will not he treated as such, so as to necessitate an answer thereto by the plaintiffs, merely because the plaintiffs indorsed thereon an admission of service and a consent that the pleading stand as and for the defendant’s answer and cross-complaint.
Partnership — Identity op Firms. — A partnership alleged to be composed of two persons, doing business under the firm name of McCormick & Lewis, and a partnership alleged to be composed of three persons, doing business under the firm name of McCormick, Lewis & Co., will not he presumed to be the same firm, in the absence of any allegation or proof of their identity.
Id. — Joint Liability op Partners. — Several persons contracting together with the same party for one and the same act are liable jointly, and not individually or separately, in the absence of any words to show that a several as well as an entire liability was intended. Especially is this the rule as to the legal liability of partners upon their partnership ■ obligations.
Id. —Action to Enforce—Necessary Dependants. —In an action to enforce a joint partnership liability, all the partners must be made defendants, unless they are sued collectively by their firm name, under section 388 of the Code of Civil Procedure.
McKee, J. This is an appeal from a judgment and order denying a motion for a new trial in an action brought by plaintiff against defendants, who are designated in the complaint as “John McCormick and Oscar Lewis, partners, doing business under the firm name of McCormick & Lewis,” to recover a balance, which, plaintiff alleged, defendants owed and refused to pay, for fifty tons of “ Montana Lump Lehigh hand-picked coal,” which was delivered to them on the 1st of August, 1882, in the execution of a contract of sale previously made between them and the plaintiff, under which plaintiff shipped the coal from New York and delivered it to the defendants at San Francisco.
The pleadings in the case were not verified. The answer of the defendants contains a general denial of the allegations of the complaint, and a statement of new matter which, it is claimed, constitutes a cross-complaint.
The new matter is substantially this: That on the day of the contract of sale stated in the complaint, “these defendants, with one T. A. McCormick, as McCormick, Lewis & Co., were engaged in the business of iron founders in the city of San Francisco,” and contracted with the plaintiff for fifty tons of coal “ of the same quality and value as a sample then on hand,” which was known as “Montana Lump Lehigh hand-picked coal,” to be shipped by the plaintiff from New York and delivered to them at San Francisco, for which they agreed to pay him “$13.50 per ton and shortage not exceeding two per cent; [618]six dollars per ton payable on receipt of the bill of lading, and the balance on delivery of the coal at ‘ship’s side’ in San Francisco.”
Fifty tons of coal were shipped by the plaintiff from New York consigned to the defendants, the bill of lading for which was duly received, and upon receiving it, “these defendants ” paid to the plaintiff upon the shipment six dollars per ton, pursuant to their agreement, and soon afterward, on the arrival of the ship containing the coal at San Francisco, the coal was delivered to them, and they accepted the same; but they refused to •pay for it, on the ground that it did not correspond with the sample, “was of a grade, quality, and value inferior to the sample,” “was not worth more than six dollars per ton,” and was “ wholly unfitted for use,” although, it is alleged, “ they made an effort in good faith ” to use it, and thereby suffered damage in the sum of three hundred dollars, aside from the three hundred dollars which they had paid the plaintiff under the contract, for which McCormick, Lewis & Co. ask damages against plaintiff in the sum of three hundred dollars.
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