Weinreich v. Johnston

Works, J. The respondents, H. Weinreich and F. Raschen, as partners doing business under the firm name of Weinreich & Co., sued the appellant in the court below on a promissory note and upon an account. The complaint contains the necessary averments showing the partnership, and a compliance with the statute with reference to the filing of a certificate thereof with the county clerk, and alleges in the first count that the defendant executed to the plaintiffs the promissory note sued on, and in the second count, the purchase of goods and merchandise, and the amount due therefor.

The defendant denied all of the material allegations of the first count, except the formal allegations as to the partnership, and admitted the allegations of the second, count.

It was proved by the evidence, and found by the court, that the respondent Weinreich was, prior to the formation of the partnership alleged in the complaint, doing business individually, under the firm name of H. Weinreich & Co.; that the note sued on was executed to and was due to him, and not to the firm composed of the plaintiffs Weinreich and Raschen; and that the amount of the account was due to said firm. Upon these findings the court rendered judgment in favor of Weinreich, individually, for the amount of the note, and in favor of the firm for the amount found to be due on the account.

[256]The defendant moved for a new trial, which was denied, and he appeals.

We think the judgment cannot be supported by reason or authority. As to the judgment in favor of Weinreich, individually, there is no pleading to support it. Weinreich was not a party to the suit in his individual capacity. The allegation of the complaint was, that the note was given to some one else, and there was no allegation of the execution of any note to him, and nothing to show an indebtedness to him from the defendant, or any averments upon which a judgment could rest.

But the respondent contends that the question of variance in the proof, or a misjoinder of parties, is not raised by demurrer or answer, and is therefore waived under section 434 of the Code of Civil Procedure. There was no misjoinder of parties. The plaintiffs alleged an indebtedness to the parties - suing, and the defendant, in his answer, denied it. Mot only was it not waived, but his defense was made, proved, and found -in his favor by the court.