
    Addicken v. Schrubbe.
    1. Pleading: joinder of causes of action: parties. Two parties cannot be joined as defendants in one action where a recovery is sought against one of them, upon a written contract and against both upon an oral agreement.
    
      Appeal from Winneshiek District Court.
    
    Saturday, December 16.
    The petition states that the defendants, in the firm name of Schrubbe & Bro., executed and delivered to plaintiff a certain agreement in writing which admitted the execution of certain indebtedness from the firm to the plaintiff. The defendants answered separately. One of them denied the execution of the agreement, and alleged the same was executed by the other defendant after the dissolution of the partnership. The other defendant states, in his answer, that at the time the agreement was executed there was no such firm as Schrubbe & Bro. and that said agreement was fraudulently obtained, but admits that he executed the same.
    It appeared by plaintiff’s testimony that, at the time the agreement was signed by one of the defendants in the firm name, the partnership was not in existence; whereupon the plaintiff offered the contract in evidence, to which defendants objected and were sustained therein by the court; whereupon the plaintiff asked and obtained leave to file the following amendment to his petition: “That defendants, while co-partners under the firm name Of Schrubbe Bros., received of plaintiff, May 1st, 1866, $110, and Sept. 1st, 1866, $300, for which money defendants agreed to pay for the use of the same ten per cent, but said agreement was not in writing * * * ; 'that the claim in plaintiff’s original petition is for the same identical cause of action herein set out; and plaintiff asks to recover in this suit only upon one of the counts, either that in the original petition or in this.”
    To the amendment to the petition the defendants answered, and the trial proceeded, and resulted in a verdict against one of the defendants for $363.28, and the other for $167.75, and judgment was accordingly rendered. The defendants appeal.
    
      Ohas. P. Brown, for appellants.
    No appearance for appellee.
   Seevers, Oh. J.

The original petition seeks to recover of both defendants, under the written contract signed in their Pai'tnfership name, and the amendment thereto-seeks to recover against the same parties on an oraj agreement of the partnership to repay certain borrowed money. These two pleadings should be regarded as one petition containing two counts. Such seems to have been the intent, of the pleader.

While the first count or petition stood alone the court excluded the written agreement as evidence, but admitted it after the amendment was filed. We are at a loss to conceive in what way or manner the legal right to recover on the writing was changed by the amendment. It, as well as the original petition, sought a recovery against both defendants as a firm, and neither sought to charge either defendant separately, by reason of any agreement or thing done by him alone. No separate liability whatever is charged in either count of the petition.

The plaintiff claims to recover only on one of the .counts, that is, either on the original petition or the amendment thereto. The court, in the instructions to the jury, recognized the right of the plaintiff to recover of one defendant on the written agreement or first count, and against the other defendant on the oral contract or second count in the petition. In this there was error. Both defendants are clearly liable on the second count, and it is so framed that such recovery can be had, while the first count seeks a recovery against both defendants and the facts proved only show the liability of one.

If the pleadings had been drafted in accord with the facts proved the first count would have shown a separate cause of action against one defendant, and the second count a cause of action against both defendants. This would have presented for trial a joinder of causes of action not allowed even under the Code. In this action, at least, the plaintiff cannot have a recovery against one defendant on the written contract and against the other on the oral agreement. He must elect on which; he cannot have both.

Reversed.  