Harrison v. McCormick

BRITT, C. Action to recover a balance of the price of goods sold; the action was begun against John McCormick and Oscar Lewis, alleged to be partners under the name of McCormick & Lewis; plaintiff had judgment, which was reversed on appeal, for the reason that one T. A. McCormick was shown to be a co partner with said defendants and a necessary party to the action. (Harrison v. McCormick, 69 Cal. 616.) Plaintiff then amended his complaint, joining said T. A. McCormick with the former defendants, and alleging, among other things, that the contract sued upon was made with the three as copartners under the firm name of McCormick, Lewis & Co. Between the time of the commencement of the action and the amendment aforesaid, the statute of limitations applicable to plaintiff’s demand had run in favor of T. A. McCormick; he pleaded the same by demurrer to the amended complaint, the court sustained the demurrer and dismissed the action as to him. On a subsequent trial between plaintiff and the two defendants originally sued, the court non-suited the plaintiff at the close of his evidence; he moved for a new trial, which was denied, hence this appeal. There was an intermediate appeal of no present interest except as part of the history of the case (Harrison v. McCormick, 89 Cal. 327; 23 Am. St. Rep. 469).

Most, if not all, of the considerations advanced by respondents in support of the nonsuit ordered by the court are resolvable into the single proposition that since the right of action on the contract was barred by the statute as against T. A. McCormick, therefore it was lost also against his copartners'—on the principle that the release of one of two or more partners or other joint debtors is a release of all. Certain qualifications of the rule invoked are as fully established by the common law as the rule itself: “If the discharge do not relate to the merits' of the contract, and only concerns the person of one of the promisors; [653]as infancy, bankruptcy, et cetera, the other promisors are still holden. 'For/ in the language of the Mirror of Justice, p. 215,. 'satisfaction hath respect to the debt and not to the person/ ” (Townsend v. Riddle, 2 N. H. 449, and cases cited.) It is perfectly well settled that the discharge of one partner in bankruptcy, or the infancy of one partner pleaded to an action on a contract voidable by him for that reason, does not affect the liability of his copartners for the joint debt. (Parsons on Partnership, 4th ed., secs. 17, 376; Lindley on Partnership, marg. p. 224; Tooker v. Bennett, 3 Caines, 4; Woodward v. Newhall, 1 Pick. 500; Slocum v. Hooker, 13 Barb. 536, 541.) The statute of limitations is also a defense peculiar to him who pleads it; as has been said here, it is a personal privilege of the debtor to-be asserted or waived at his option (Grattan v. Wiggins, 23 Cal. 16); its effect is not to satisfy the debt but to bar the remedy; and we perceive no sufficient reason why this defense which, by operation of law, produces the personal discharge of one of two or more partners or other joint debtors; should be available to his codefendants who have not the same advantage.