Morgan County IL Archives Court.....Chambers, William B Warren V George M 1850
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 May 19, 2008, 8:54 am

Source: Reports Of Cases
Written: 1850

William B. Warren, plaintiff in error, v. George M. Chambers et al., 
defendants in error.

Error to Morgan.

When defendants who are sued as partners upon an instrument in writing, file a 
plea verified by affidavit denying its execution, such plea also puts in issue 
the fact of joint liability.(a)

In all cases, whether the action be upon contracts express or implied, in 
writing or by parol, defendants who are sued as partners, can only put that 
fact in issue by a plea in abatement, specially denying the partnership or 
joint liability.(b)

When such a plea in abatement is filed, the burthen of proving the partnership 
devolves on the plaintiff.

If several are sued upon an instrument in writing, and wish to deny their 
joint liability, as well as the execution of the instrument, the joint 
liability of all will be admitted, who do not join in the affidavit denying 
the execution of the writing.

But if the joint liability is put in issue by a plea in abatement, it will be 
sufficient to verify the plea by the affidavit of one of the defendants, or a 
third person.

This action was commenced in assumpsit, in the Morgan Circuit Court by the 
plaintiff in error against the defendants.

The defendants filed the plea of the general issue, verified by the affidavits 
of all the defendants. At the trial the plaintiff insisted that he was not 
bound to prove the partnership, that fact not having been put in issue by the 
plea. This position was controverted by the defendants, who insisted that the 
plea of non assumpsit, verified by oath, put the partnership in issue, the 
Circuit Court, so decided, and the plaintiff was forced to make proof of the 
partnership. The declaration declared against the defendants as partners. A 
verdict was found for the defendants, and judgment was entered accordingly. 
The cause was heard before Woodson, Judge, and a jury, at September term, 
1850. The questions raised upon the instructions, not having been considered 
by this court, are omitted in the statement.

M. McConnel and Wm. H. Herndon, for plaintiff in error:

If the plea is the general issue, it is insufficient and uncertain. The plea 
should set out some facts, so as to let the court judge as to the law arising 
upon those facts, as to what constitutes a partnership, and of the liability 
for the act of one: 3 Kent's Com., 23, 40, 43, 44 and 46; 15 Conn., 57; 7 
Iredell, 4.

If the plea is the general issue, proof of partnership is unnecessary: R. S., 
p. 233, sec. 8; 2 Gilman, 715.

The statute requires that a plea in abatement, verified by affidavit, shall be 
filed to put the partnership in issue. And if a plea in abatement was 
designed, it was waived by filing it with the general issue. Both cannot be 
pleaded at once: 1 Chitty's Pl., 457-8; 1 Green's Iowa Rep., 165; 1 Eng. Ark., 
173.

D. A. Smith, for defendants in error.

Trumbull, J. The declaration in this case is in assumpsit against the 
defendants as partners, and contains only the common count for money paid and 
advanced. The defendants pleaded the general issue, and annexed thereto their 
affidavits of its truth.

The record shows that the money was paid to one of the defendants, and the 
point in controversy was, as to the liability of the other defendants with him 
as partners. Both parties offered evidence upon the question of partnership, 
and the jury found a verdict for the defendants, who had judgment accordingly.

The correctness of the proceedings in the case, depends upon the construction 
of section 8, chapter 40, Revised Statutes, which declares: "In actions upon 
contracts express or implied, against two or more defendants, as partners, or 
joint obligors or payors, proof of the joint liability or partnership of the 
defendants, or their christian or surnames, shall not, in the first instance, 
be required, to entitle the plaintiff to judgment, unless such proof shall be 
rendered necessary by pleading in abatement, or the filing of pleas denying 
the execution of such writing, verified by affidavit, as required by law." The 
foregoing section, as incorporated into the Revised Statutes, is a literal 
copy of the second section of an "Act regulating evidence in certain cases," 
approved February 17, 1841, except that in the original act the section 
concludes with the words, "as required by the act concerning practice in 
courts of law, approved January twenty-ninth, one thousand eight hundred and 
twenty-seven," in the place of the words "as required by law," which conclude 
the section in the Revised Statutes. The change of these words cannot in the 
least alter the construction to be put upon the act. It is clear, therefore, 
that the phrase, "the filing of pleas denying the execution of such writing," 
has reference to the plea required to be filed by section 14, chapter 83, 
Revised Statutes, to put in issue the genuineness of an instrument of writing 
upon which suit is brought. This court so understood and treated the words 
under consideration in the case of Stephenson v. Farnsworth, 2. Gil., 715.

It was held in that case, that the statute in question "was intended to change 
the rule of evidence respecting the proof of partnership, and place it upon 
the same footing with the proof of the execution of written instruments."

This language of the court must, of course, be understood with reference to 
the case then under consideration, and as applying only to a case where the 
action is brought upon an instrument of writing, the execution of which is put 
in issue as required by the practice act. When, therefore, the defendants who 
are sued as partners upon an instrument of writing, file a plea verified by 
affidavit, denying its execution, such plea, according to the statute, also 
puts in issue the fact of the joint liability of the defendants.

In all cases, except when the foundation of the action is an instrument of 
writing, the execution of which is denied by plea verified by affidavit, 
whether the action be upon contracts, express or implied, in writing or by 
parol, defendants who are sued as partners can only put in issue that fact by 
filing a plea in abatement, specially denying the partnership or joint 
liability.

In this case no such plea was filed, consequently all the evidence upon the 
subject of the partnership of the defendants was improperly admitted to go to 
the jury, as no such question was in issue.

The legislature has an undoubted right to change the rules of evidence and to 
declare that a fact which the plaintiff, to entitle himself to recover at the 
common law, would have been obliged to prove in the first instance, shall be 
taken as admitted, unless its existence is denied by the defendants in a 
particular manner. When the plea, in abatement is filed, the burden of proving 
the partnership devolves on the plaintiff, as was the case at the common law, 
when the general issue simply was pleaded. When several are sued upon an 
instrument of writing, and they wish to deny their joint liability as well as 
the execution of the writing, according to the case of Stephenson v. 
Farnsworth, the joint liability of all the defendants will be admitted, who do 
not join in the affidavit denying the execution of the writing.

The rule, however, would be different, when the joint liability was put in 
issue by plea in abatement. In such a case it would be sufficient to verify 
the plea by the affidavit of one of the defendants, or a third person.

In the view taken of this case, it becomes unnecessary to pass upon the 
sufficiency of the evidence to warrant the verdict of the jury, but we have 
looked into the proofs as contained in the record, and are satisfied that a 
verdict the other way would have been quite as consistent with the evidence.

As the plea required to put the partnership of the defendants in issue, though 
in form in abatement, goes to the merits of the case and defeats forever the 
right of action against the defendants jointly, and as both parties treated 
the plea filed on the former trial as putting this fact in issue, it will be 
proper, when the case comes off again before the Circuit Court, to allow the 
defendants to withdraw the plea filed, and deny their partnership by plea in 
abatement, if they shall be so advised.

The judgment of the Circuit Court is reversed, and the cause remanded.

Judgment reversed.

Treat, C. J. I do not concur in the construction put upon the statute. In my 
opinion, it was the real design of the legislature to permit defendants to put 
in issue the question, whether they are liable as partners, either by plea in 
abatement or in bar, the truth thereof being verified by affidavit.

-------------------------
(a) Gray v. Ward, 18 Ill., 33; Dwight v. Newell, 15 Ill., 333; Davis v. 
Scarritt, 17 Ill., 202; McKinney v. Peck, 28 Ill., 174.

(b) R. S. 1874, ch. 110, see. 36. A plea in abatement denying the partnership 
is not waived by filing a plea of general issue: Stilson v. Hill, 18 Ill., 
262. The plaintiff is only required to prove the joint liability as to those 
defendants who file pleas supported by affidavit: Stevenson v. Farnsworth, 2 
Gil., 715. When the affidavit denies the partnership only, the execution of 
the instrument sued on is not put in issue. It is not enough in the affidavit 
to state the facts are true to the best of affiant's knowledge and belief: 
King v. Haines, 33 Ill., 280. Partnership can only be put in issue by plea in 
abatement properly verified: Shufeldt v. Seymour, 21 Ill., 523. Except where 
the foundation of the action is an instrument in writing, the execution of 
which is denied by plea: McKinney v. Peck, 28 Ill., 174. When a plea in 
abatement verified by affidavit, is filed denying the partnership, the burden 
of proving the partnership is upon the plaintiff: Smith v. Knight, 71 Ill., 
148. The object of the statute is simply to relieve the plaintiff from proving 
the joint liability of defendants unless it is denied, but it does not prevent 
the defendants from introducing evidence showing they are not jointly liable: 
Donnan v. Bang, 3 Brad., 400. In proving partnership in such cases, the 
admissions of one of the defendants are not good against the others until 
after the partnership is proved. Such admissions are good as against the party 
making them: Degan v. Singer, 41 Ill., 28; Gordon v. Bankard, 37 Ill., 147; 
Hahn v. St. Clair S. & Ins. Co., 50 Ill., 456. See Gardner v. Northwestern 
Mnfg. Co., 52 Ill., 367; Smith v. Hulett, 65 Ill., 495.

Additional Comments:
Reports of Cases Determined in the Supreme Court of the State of Illinois from 
November Term, 1850, to June Term, 1851, both inclusive by E. Peck, Counsellor 
at Law. Volume XII. Reprinted from the Original Edition, with Annotations by 
William Gordon McMillan of the Chicago Bar. Callaghan & Company, Chicago, Ill. 
1881.

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