
    George Bridge, Respondent, v. Ira F. Payson, Appellant.
    In an answer, under the code, each statement intended as a defence must be complete in itself, but to mark it as a separate defence, no formal commencement or conclusion is required,
    A prayer for relief in an answer, is only necessary when an affirmative relief is sought. It is needless when the only object of a defence is to prevent the plaintiff's recovery.
    Nor is it necessary that a defence should be accompanied with the reason why it should operate as a bar.
    When a fact is stated, in a pleading under the code, which constitutes of itself a cause of action, or a defence, the intent to rely upon it as such is a necessary inference. No allegation to that effect is requisite in the complaint or answer.
    As there can be but one answer under the code, it must contain every defence, whether operating in abatement, or as a perpetual bar, upon which the defendant means to rely.
    Hence, it is no objection to an answer, that after taking issue upon the material allegations in the complaint, it allegeá, as a defence, matter in abatement.
    The omission of a defendant to move for a judgment dismissing the complaint, under § 154 of the code, does not preclude him from demanding such a judgment upon the trial.
    Ás a judgment contrary to an admission in the pleadings, would be certainly erroneous, the objection, if made on the trial, must be allowed.
    When a person, liable only as a partner, is sued alone, the non-joinder of his. co-partner is a valid defence.
    The rules of law applicable to the ease have not been altered by the provisions of the code.
    In this case the defendant was sued alone, in an action for goods sold and delivered. In his answer he denied the sale, and alleged, that if liable at all, be was only so as one of a firm, composed of himself and one Rogers. To this allegation the plaintiff omitted to reply. Yet upon the trial, the jury, under the direction of the judge, found a verdict in his favor, upon which judgment was entered for him with costs.
    Held that this judgment was erroneous, and that unless the plaintiff should elect to amend, by making Rogers a party, the complaint must be dismissed.
    (Before Sandford & Mason, J. J.)
    October 8,
    November 8, 1851.
    This was an appeal, by the defendant,.from a judgment at a special term, in favor of the plaintiff.
    It is necessary to state the pleadings, in order that the questions raised, and the decision of the court, may be clearly understood.
    
      The complaint and answer are as follows :—
    George Bridge, the plaintiff in this action, complains of I. F. Payson, defendant, a resident of the city and county of New York, and says that the said I. F. Payson, defendant, is indebted to him for goods, wares, and merchandise, sold and delivered to the said defendant, by the plaintiff, in the city of New York ; that the plaintiff sold to the defendant, on the 13th day of October, one thousand eight hundred and forty-nine, a bill of goods and merchandise, amounting to the sum of four hundred and fifteen dollars and seventy-three cents ; and on the ninth day of May, one thousand eight hundred and forty-nine, another bill, amounting to the sum of forty dollars and fifty-nine cents-, the whole of which is still due and unpaid, with interest after six months from the time of delivery.
    The plaintiff, therefore, claims judgment for the sum of four hundred and fifty-six dollars and thirty-two cents, with interest on the respective amounts, as follows :—On the small bill, from the ninth day of November, one thousand eight hundred and forty-nine, and on the large bill from the thirteenth day of April, one thousand eight hundred and fifty, besides the costs-of this action.
    The defendant, Ira F. Payson, answers the complaint of George Bridge, the plaintiff, that he has no knowledge sufficient to form a belief, whether the goods, wares, and merchandise, mentioned in plaintiff’s complaint, were sold and delivered tollina ; and he cannot, therefore, admit that he is indebted to th& plaintiff. That if defendant is indebted to said plaintiff, it is as one of the firm of Payson & Co., a firm doing business at Flint, Genesee co., Michigan, and composed of Ira Payson (this defendant) and Thomas V. Rogers; that this defendant now resides temporarily in the city of New York, and that Thomas V. Rogers, his co-partner, now lives at said Flint, Michigan; that said Rogers has the whole control and attention of the business of said firm, and if any merchandise has been purchased of said plaintiff, it has been for the business of said firm, and under the knowledge and advisement of said Rogers, and this defendant has no knowledge sufficient to form a belief, whether said merchandise, or ány óf it, has been delivered to Payson &' Go., or if delivered, if it has not been paid for already, and before the commencement of this action.
    To this answer there was no reply.
    " Upon these pleadings, the cause" came on" to be tried1 at' a special term, before the chief justice, and a jury, on the 30th May, 1851, and the following proceedings were had :
    The counsel'for the defendant', upon the pleadings’,'moved that the complaint of the plaintiff be dismissed, or a non-suit granted for a non-joinder of parties defendants. The court denied' the motion, and the counsel for the defendant excepted.
    The counsel for the plaintiff then produced witnesses, who proved that the goods and merchandise mentioned in' said complaint, were sold to Payson & Co., a" firm composed of Ira F. Payson, the defendant, and Thomas Y. Rogers. The place of business of said firm was Flint, Genesee county,"Michigan, to which place the said goods were shipped, and where the said Rogers then did, and now does reside; that the said goods were charged on the books of said plaintiff, to Payson' & Co.
    " The counsel for the plaintiff then rested his cause. The counsel for the defendant then renewed his motion for á non-suit, or dismissal of plaintiff’s complaint, upon the pleadings, and plaintiff’s proof. ,
    The court denied the motion,' and the counsel for the defendant excepted.
    The judge then directed the jury to find for the plaintiff, and 'to this direction the counsel for the defendant also excepted.
    The verdict of the jury Was for the sum'of $490 91, for which amount, with'$50'81 for costs and disbursements, judgméníwas entered for'the plaintiff.
    ' ; The cause'was now heard upon the exceptions taken on the trial.
    
      H. R. Pierson, for the defendant.
    .The law is settled, that where a partnership' debt is sought to be recovered, all the living members of the' có'pártnership ¡^j-musibe joined’gs defendant's in the action,! Chi tty on'Part. *28. Here the plaintiff’s only cause of action, not' only' a’s shown by the answer, to which there was no reply, but as proved by himself upon the trial, was against the firm of Payson & Co. The answer was equivalent to a plea in abatement for the non-joinder of a joint debtor, and as such plea, it was both admitted and proved to be true. The judge therefore erred in refusing to dismiss the complaint, and the judgment must bo reversed.
    
      H. Brewster, for the plaintiff, made and argued the following " points:
    I. The counsel for the defendant asked for a dismissal of the _ complaint, because issue was not joined.
    An objection of this kind should be taken by motion, under § 154. Going to trial is an admission that issue is properly* joined.
    Trial is an examination of the issues, Sections 248 to 253, óf the code. "'
    II. The averment in the first five lines of the answer forms' an issue on the principal fact in the complaint within the rule in subdivision 1 of § 149, and is equivalent to the old general issue. ‘ '•
    The other parts of the answer are made up of the reasons for so faint a denial of the allegations of the complaint. This' mode of pleading to prevent inferences, is quite common under our new system.
    III. Having thus set up one defence, if he intended to make any other, he was bound to state it separately, code § 150. By attending to this rule the intention would be clear, and the op-: posite party not misled.
    IV. After having thus taken issue, it is too late for the defendant to allege matter in abatement, 1 John Cas. 101; 2 Cow. 417; 13 Wen. 285; Steph. Pleading, 430 to 433.
    There is nothing in this rule inconsistent with the code, and" § 469 applies.
    V. The answer does not sufficiently show an intent to raise, an objection on the ground of non-joinder, nor is the answer good in form. Only the forms inconsistent with the code are" abolished, § 140,; (Dollner v. Gibson, 3 Code Rep. 153; Boyce v. Brown, 7 Barb. S. C. R. 80, 85.)
    
      It is not inconsistent with the code to require an answer in abatement to state the matter with precision, and show clearly what judgment the party seeks to obtain. Here is no statement that Rogers ought to. be a party, as was always required in equity, nor a prayer that the complaint be quashed, nor even an objection to the maintenance of the suit against the defendant alone, 13 Wen. 495; 1 Ch. Pl. 460; Steph. Pl. 48; Ch. Forms, 3 vol. 900; Eq. Drftsmn. 452; Gra. Pr. 2 Ed. 229 & 230; Trinder v. Durant, 5 Wen. 72; 10 Johns. Rep. 49.
    VI. Abatement for non-joinder has been abolished by the code. The code declares who shall and who may be parties.
    Within the provisions of § 118, Rogers might be a party ; but § 122 declares who must be parties.
    That section read as follows :—
    § 119.—The court may determine any controversy between parties before it, where it can be done without prejudice to the rights of others, or by saving their rights ; but when a complete determination of the controversy cannot be had without the presence of other parties, the court shall order them to be brought in.
    The question is, whether the court can determine the controversy between these parties, without prejudice to the rights of Rogers. As I shall show, he will not be prejudiced.
    1. The judgment will not affect him. The commissioners on the code, say (Comm.’s Report, 123 to 125), “ No person can be affected by a judgment, but a party, or one-who claims under him.” Nor will it work any injustice to the defendant.
    If both defendants are brought in, the court will not settle the partnership accounts or their rights between themselves.
    2. Where process is only served on one of several parties, the one before the court represents all the parties as to the joint interest; therefore complete justice may be done (Mason v. Denison, 11 Wen. 612).
    This defendant can just as well represent the interests of both, as if process issued against the other which could not be served.
    3. The origin of the defence of non-joinder, was a supposed variance between the contract as laid, and the contract as proved (Sheppard v. Baille, 6 T. R. 327; 1 Saund. Rep. 291); and on account of the injustice of the old rule the courts, modifying it, required it to be pleaded in abatement. (Rice v. Shute, 5 Burr. 2611; 1 Saund. Rep. 291, 6 note (4) 1 Ch. Pl. 46; Steph. on Pl. Phil. Ed. 1841. App. xxix. note 23.)
    It was much earlier held that the defendant must plead the non-joinder in case of a specialty. (Whelpdale’s case, 5 Coke, 119; Burgess v. Abbott, 6 Hill, 135, and cases cited.)
    Non-joinder is said to be an ungracious defence. (1 Hill, 478, per Cow. Justice, cases above; also Williams v. Allen, 7 Cowen 316, 9 Cowen 44.)
    Was it ever doubted that complete justice could be done in the case referred to ? (Mechanics’ and Farmers’ Bank v. Rider, 5 Pr. R. 401.)
    4. This defence cannot abate the suit if taken by plea, in any action not directly on contract. (Mitchell v. Tarbut, 5 T. R. 659; Orange County Bank v. Brown, 3 Wen. 158.)
    It is doubtful if the non-residence should not be allowed to control. (Dennet v. Chick, 2 Greenl. R. 191; Sto. Eq. Plead. § 78 and § 82.)
    5. The report of the commissioners shows what they intended by these provisions, and we think that intention indicated in the act itself.
    They say :—“ Having prescribed these rules, we have intended to leave suitors very much at liberty to choose whom to make defendants, and whom to join as plaintiffs.” (5 Prac. Rep. 101 & 102; Report of Commissioners, 124 & 125.)
    
      Pierson was heard in reply.
   By the Court.

Sandford, J.

The plaintiff makes several objections to the form in which the defence was presented and urged. We will consider them in their order.

I. Part of the answer putting in issue the sale to the defendant, sets up one defence, and if any other were intended, it should have been stated separately. This is amplified by insisting that the manner in which the subsequent defence is pleaded, does not sufficiently show an intent to raise an objection on the ground of a non-joinder of the defendant’s copartner ; that if properly pleaded, the defence would allege in terms that the copartner ought to be made a party, or would cóútáí'n' a:,pfayéf that the complaint be quashed.

' As to all this, the code • requires' séparate defeiicés to ■ be' separately stated ; but wé apprehend this means nothing more'' than that there shall be “a plain and concise statement of any nfew matter constituting a defence.” Each statement intended as a defence, must be complete in itself; but the code does not réqñire any formal commencement or conclusion' of such statements. On the contrary, the whole spirit of the code is'hostile to" both; There is no occasion for the answer to contain any prayei; for relief, or to demand relief, where hone "is'sought by the defendant. Here the defence was to the plaintiff’s ‘c'laitii'; it made’no-' affirmative claim on the part of the defendant, ■ and all he desired was to prevent the plaintiff from recovering a judgment against him. Nor is it necessary", after inserting in ah' answer a statement, which shows that thé plaintiff ought not to recover,to*accompany it with the reason ; as in this instance, because he had omitted to bring before the court the necessary parties."

We think that this answer sufficiently shows the intent tor rely upon the objection of nonjoinder. Where a fact is stated in a pleading, which of itself constitutes a cause of action, or a defence to the action, the intent to rely upon it is a necessary inference. No allegation to that effect is requisite, either iií a complaint or answer. Here, the defendant, after traversing'the salé to himself, which made one complete defence, stated as a distinct and positive" fact, that‘if the goods in question were purchased of the plaintiff, it was by the defendant, and one Rogers, as partners, and that Rogers is still living. This fact constituted another separate and complete ground of defence, and ■vfe think it was sufficiently' pleaded.

2. It is objected that; after taking issue on the principal-fact in the complaint, it is too late to allege matter in abate-: ment. This is clearly an error. If the matter in abatément constitute a defence, it must be stated-in: the answer. There, cannot,be two answers1,'and the answer may set forth as many: grounds of defence as: the defendant shall have. (Code of Proc. §-‘ 150.) A defect óf parties, apparent in the complaint,' iáground of demurrer : if not so apparent, it may be set up in; the añswer. (Code,- 144, Aid. 4/ and § 141.)

3. The objection to the recovery, it is said, should have been taken by motion, under section 154 of the code. It is probable, the defendant might have made this motion, but his omission did not alter the case made by the pleadings, or create any bar to his relying upon it, whenever the plaintiff moved in the cause. We do not say, that he ought to recover costs, when he prevails at the trial upon a ground which was available to him on such a motion. But a judgment entered upon a trial, in the face of an admission by the pleadings, showing that there ought to be no such judgment, would be erroneous, and, of course, the objection, if made at the trial, ought to prevail. In this case, the plaintiff proved on the trial the fact set up in the answer, and therefore established the latter, even if the omission to move for judgment be deemed to be an admission that the fact was in issue.

This brings us to the substantial point in the case—Can a defendant, sued alone on a contract, set up as a defence, that hiscopartner, equally liable with himself, is not joined as a party defendant ?

After considering the question, with the benefit of a consultation with our brethren, who all concur with us, we think that fhis constitutes a defence.

It is not denied, that before the code, when properly pleaded, it was a perfect defence to any recovery, in the action against the parties sued. What was a defence before the code, is still a defence, except in the instances where the code itself, has altered the law. The plaintiff relies upon section 122, as having, made this alteration, in the provision that the court may determine any controversy between the parties before it,, when it can be done without prejudice to the rights of others, &c.

It is quite apparent that the rights of other partners might be prejudiced by the omission to make them parties, as where they have paid the debt sued, or have some other defence to the claim, of which the partner sued is ignorant, or chooses not to avail himself. In the event of a judgment against him, and its collection, the amount of it becomes a proper item of account between him and his copartners, and they cannot avoid its allowance by proving that the recovery was wrong and unjust, nor in any mode short of proof of bad faith in their partner, against whom it was recovered.

It will often be a serious prejudice to a joint debtor, sued alone, to be compelled to pay the whole debt, and resort to his associate debtor for contribution. Partners after a dissolution, are merely joint debtors, and after a settlement between themselves, stand precisely in the same relation, in respect of their outstanding liabilities. The same reasoning that is applicable to joint debtors, will apply to such partners, and the same rule of practice, it is believed, must be applied to partners, both before and after dissolution.

There are some provisions in the code, which indicate that there was no intention to change the rule of law requiring all joint contractors to be sued together. We refer to sections 136, 375, 397, the second sentence of section 274, and the portions of sections 144 and 147, applicable to a defect of parties. No serious inconvenience can result to plaintiffs, by requiring them to make all the joint debtors parties defendant in a suit upon contract. If they are ignorant of the debtors’ names, as may often- happen in suits against a partnership, they can, by an amendment, made of course and without costs, bring in the omitted partners, on their names being disclosed by the answer of those who were sued.

In this case, the plaintiff was informed by the answer, that Rogers -was jointly liable for his demand, if any he had, and he should have amended, instead of going to trial with that fact admitted.

The judgment in his favor must be reversed, and unless he will amend, so as to make Rogers a party, his complaint must be dismissed.  