Opinion
33301.
DECIDED MARCH 2, 1951. REHEARING DENIED MARCH 16, 1951.
Trover; from Terrell Superior Court — Judge Geer. September 1, 1950. (Application to Supreme Court for certiorari.)
Smith, Kilpatrick, Cody, Rogers McClatchey, R. R. Jones, for plaintiffs in error.
J. V. Davis, E. A. Landau, Leonard Farkas, H. A. Wilkinson, Walter H. Burt, contra.
1. The petition in this trover case drawn substantially in the "Jack Jones Form" was sufficient to withstand a general demurrer.
( a) The description of the property sought to be recovered as 87,319 pounds of peanuts grown on a particular farm in 1945 and delivered to the defendants by certain persons or firms during a specified period of time was sufficient to withstand the special demurrer raising that question.
2. After the dissolution of a partnership, and a division between the two partners of the firm assets remaining after the payment of all indebtedness, and after an agreement between the partners that a claim for personalty against a third party, a part of the firm assets, would be divided equally between them, the partners thereafter became tenants in common, insofar as such personalty, or their claim therefor was concerned, and it was permissible for an assignee of the interest in such personalty and of his claim therefor of one of such cotenants to sue in trover for the recovery of a one-half undivided share of such property without joining the other covenant, and without suing in the name of the dissolved partnership.
3. In an action ex delicto it is permissible for the plaintiff to join as defendants in one suit the principal and the agent, by whom the tort was actually committed, as joint tort-feasors.
DECIDED MARCH 2, 1951. REHEARING DENIED MARCH 16, 1951.
J. G. Raines sued Frank A. Graham and the Southern Cotton Oil Company in an action in trover in the Superior Court of Terrell County. His petition as amended alleged substantially: that he was the owner by a written assignment, a copy of which was attached as an exhibit to the petition, of a one-half interest in 174,639 pounds of peanuts delivered to the defendants, Southern Cotton Oil Company by J. W. Duskin or the Farmers Exchange, neither of whom had title to the said peanuts, and received by the defendant Graham as the agent of the company during the latter part of October and the months of November and December, 1945; that he claims title and the right of possession, and that the defendants, after demand, have refused to deliver them to him; that the value of the peanuts is $19,140; that the peanuts in question were raised on a farm jointly operated by Mrs. Gussie Raines, the plaintiff's assignor and Mrs. J. W. Duskin; that the joint enterprise referred to was dissolved by oral agreement on or about the first of November, 1947, and all debts were paid; that the property owned by the joint enterprise was divided and distributed between the parties each to own a one-half interest; that the said Mrs. Raines and Mrs. Duskin each owned a one-half interest in the peanuts in question which were delivered to the defendants during the latter part of October and the months of November and December in the year 1945; that the amount of peanuts so delivered was 174,639 pounds, one-half, or 87,319 pounds of which now belong to the plaintiff.
The defendants demurred to the petition as amended on the ground that it set forth no cause of action; that no sufficient facts were set forth to show a right in the plaintiff to recover an undivided half interest in partnership property or to recover of the defendants the value of such undivided property; that the property sought to be recovered was not sufficiently described; that it was not specified when or under what conditions, or how the peanuts were delivered to the defendants, or in what quantities, or what kind, or from whom J. W. Duskin or the Farmers Exchange received the peanuts; that there was a nonjoinder of parties plaintiff in that this is a suit to recover an undivided half interest in partnership property, and neither the partnership nor the members of the partnership are made parties plaintiff; that there is a misjoinder of parties defendant in that it does not appear that there is a joint cause of action against the defendants; that it does not appear what property was divided in the dissolution of the partnership; how it was divided and distributed, whether such division referred to included the peanuts, and how and in what manner such dissolution would be binding on the defendants in this case. The defendants further demurred to the petition as amended on the ground that the petition as originally drawn sought to recover partnership property, while the amendment sought to recover the same property as a joint tenant; and further on the ground that the petition as amended was duplications in that it sought recovery in one count on two distinct and inconsistent causes of action, that as originally drawn the case was an action in trover while the amendments sought to recover the value of the property and damages for the conversion of the property.
The trial court overruled the demurrers, both general and special and the exception here is to that ruling.
1. The original petition in this case was substantially in the "Jack Jones" form prescribed by the legislature in the act of 1847 (Ga. L. 1847, p. 203), and if the property sought to be recovered, or for which damages for its conversion are sought, was sufficiently described, the petition was not subject to demurrer, general or special. Crews v. Roberson, 62 Ga. App. 855 (1) ( 10 S.E.2d 114). Furthermore, it is clear that the description of the peanuts involved as being those grown on the farm of Duskin and Raines in the year 1945 and delivered by J. W. Duskin, or the Farmers Exchange to the defendant in the latter part of October and the months of November and December, 1945, being one-half of 174,639 pounds so delivered, is a sufficient description. Crews v. Roberson, supra. A plaintiff is not required to set out on the face of the record in detail the evidence upon which he intends to rely. It is sufficient if from the description set out in the petition the property sued for can be separated from that general mass of similar property by extrinsic evidence limited in its range by the description in the petition. This requirement was sufficiently met when the petition described the peanuts as those grown on a particular farm or by a particular enterprise during a certain season and delivered by specified persons to the defendant during a specified period of time.
The amendments, while enlarging in some little detail the allegations respecting the description of the peanuts, the dissolution of the partnership or joint enterprise, and the dates on which the peanuts were delivered to the defendants, did not substantially change the form of the petition, and the petition as amended was sufficient to withstand the demurrers attacking it on these grounds.
2. The ruling just made disposes of all but two of the questions presented by the demurrers. The next question may be simply stated as this: After the dissolution of a partnership and the division of the partnership assets between the two partners equally, may one standing in the place of one of the former partners, in his own name, and without suing in the name of the partnership and without joining in the suit the other former partner, bring his action in trover against a third party to recover his undivided one-half interest (or the value thereof) in certain partnership property delivered to the defendant during the life of the partnership and illegally held by the defendant since delivered to him? After the dissolution of the partnership the rights of the individual former partners in any undivided personalty, including chooses in action, was that of tenants in common. The partnership had no further legal existence and could neither sue nor be sued. The plaintiff could not, then, have resorted to the use of the partnership name. Furthermore, "A tenant in common need not join his cotenant, but may sue separately for his interest, and the judgment in such case shall affect only himself." Code, § 3-111. This ruling is not changed by the fact that the plaintiff merely alleged that the partnership had been dissolved and a division of the assets had, nor by the allegation that the interests of the partners in the peanuts here involved, and in the claim or chose in action to recover them "would be" divided fifty-fifty. These allegations were sufficient to show the termination of the partnership agreement, even as against the special demurrers interposed.
The plaintiff in error cites as authority for his position that this action by one of the partners alone upon a debt or obligation due the partnership can not be maintained, the cases of Thompson v. McDonald, 84 Ga. 5(2) (10 S.E. 448); Tolar v. Funderburke, 21 Ga. App. 436 ( 94 S.E. 592); Miller v. Freeman, 111 Ga. 654, 660 ( 36 S.E. 961); Camp v. Casey, 110 Ga. 262 ( 34 S.E. 277); Spikes v. Sassnett, 19 Ga. App. 479 ( 91 S.E. 789); Hammock v. Collins, 28 Ga. App. 769 ( 113 S.E. 112); Ellis v. Hopps, 30 Ga. App. 453(5) (118 S.E. 583). As for the ruling announced in the Thompson case, it is clear that this rule applies only to actions ex contractu. See Waller v. Morris, 78 Ga. App. 821 ( 52 S.E.2d 583). This case is in trover which is, of course, an action ex delicto, and that rule does not apply here. In the Tolar case the same distinction applies, and furthermore, in that case it was expressly held that the partnership had not been dissolved. This latter reason distinguishes the Miller case. In the remaining cases it appeared that in each the plaintiff failed to show title to the specific property sued for, but this fact does not appear on the face of the petition here. For these reasons these grounds of the demurrer are without merit.
3. The final contention made by the demurrers is that there is a misjoinder of parties defendant in that it does not appear that there is a joint cause of action against the defendant company and its agent, the defendant Graham. This point was directly ruled against the defendant in Council v. Nunn, 41 Ga. App. 407, 410(c) ( 153 S.E. 234), and in Long v. Dye, 42 Ga. App. 726 (5, 6) ( 157 S.E. 359).
For these reasons the trial court did not err in overruling the demurrers, both general and special.
Judgment affirmed. Sutton, C. J., and Felton, J., concur.