#### Hopkins v. Lane.

*Counter-claim*7— *Ireach of warranty 1—Promissory notes—joint and several note—Judgment—form of.*

A note made by D., as principal, and V., as surety, was given in payment for cheese purchased by D. and several others jointly. *Held,*that damages by reason of a breach of warranty of the quality of the cheese could not he set up as a counter-claim in an action against D; and V on the note.

A promissory note signed by two-persons read, "1 promise to pay,” etc. *Held,*a joint and several note.

In an action upon a promissory note- made by D. and owned by V. and others, V. was joined as defendant, upon the ground that he refused1 to join as plaintiff. *Held,*thata judgment might he directed that'the plamtiffe recover against D. alone, without prejudice to the rights of plaintiffs and'T. as between themselves, and this, notwithstanding/ the demand'of the complaint was for judgment against “ the defendants.”

Motion for a new trial upon a case and exceptions ordered to be heard in the first instance at general term. The action was brought in Chenango county by De Witt Hopkins and a large number of others against Daniel W. Lane and Victory L. Lane, upon a promissory note reading as follows :

*312“$796.62 Lihcelaek, *Oct.*26, 1867.

“For value received I promise to pay Thomas Holl or hearer seven hundred and ninety-six dollars and sixty-two cents, 60 days from date, with interest after 30 days.

“Dakiel W. Lake,

“ Victory L. Lake.”

The plaintiffs and the defendant, Victory L. Lane, were, at the time the note was given, jointly interested in the manufacture and sale of cheese, and the note was given to the persons having charge of the sale of such cheese in payment for a quantity of cheese purchased by Daniel W. Lane and two others upon their joint account.

The complaint set forth, among other things,' that the plaintiffs and Victory L. Lane (who had signed the note as surety only) owned the note jointly, that he had refused to join, in the action as plaintiff, and was, on that account, j oined as defendant. Other facts, material to the case, sufficiently appear in the opinion.

At the trial the jury, under the direction of the court, rendered a verdict for the plaintiff for the full amount of the note and interest.

*L. B. Kern,*for plaintiffs.

*E. H. Prindle,*for defendants.

Bocees, J.

It does not appear from the papers in this case that any reply was interposed by the plaintiffs to the counter-claim set up by the defendants in their answer. But no point was taken based on any omission or imperfection in the pleadings on either side ; and the trial proceeded as if they were sufficient for the presentation to the court of every question raised. Therefore, neither party is now at liberty to urge the absence of a reply, or of any matter which could have been stated by way of a reply, as ground of objection, of in answer to any objection, considered and decided on the trial; for *non constat,*if an omission in that regard had been suggested, it would have been supplied and obviated at once by permission of the court. The case is free from all difficulties resting on questions of pleading.

It may be well here also to remark preliminarily that the matter of alleged defense for a breach of warranty and for fraud can only be urged in this case by way of counter-claim, and in' reductioh of *313the plaintiff’s claim on the note, and not as an absolute bar of the right of action; inasmuch as the property sold was accepted and retained or disposed of by the vendees without returning or offering to restore it to the vendors.' We will now proceed to an examination of the case on the exceptions sent here for our consideration.

The learned judge was unquestionably correct in holding that no right of recoupment was shown in this .case. If a claim existed, either, for a breach of warranty or for fraud, it was in favor of Daniel W. Lane, Darius W. Benjamin and Quincey Matthewson, the vendees of the property. According to the allegations of the answer, as well as to the proof, the purchase of the cheese was by those persons jointly; and the damage, if any, for the alleged injury accrued to them jointly. Eor aught that appeared they remained the joint owners of such alleged claim. It could not, therefore, be allowed in reduction of the note in suit, made by Daniel W. Lane as principal, and by Victory L. Lane as his surety.

Besides, the proof showed that one of the joint purchasers was well acquainted with the cheese at the time of its purchase and delivery, and had full knowledge of the matters pertaining to the subject of the alleged breach of warranty and fraud. His knowledge of the condition and quality of the property purchased must be deemed the knowledge of all three.

In this view the alleged defense on those grounds failed, and the learned judge, for this reason as well as for that above suggested, was right in overruling those defenses.

Mor was the defense of misjoinder of parties plaintiff established by the proof. On the contrary, it was made to appear that the plaintiffs, with the defendant, Victory L. Lane, were united in interest in the action. They were proved to be joint owners of the note, as was averred in the complaint. Indeed, the case, in all its parts, was made on the trial substantially as it was stated in the complaint, and because it was reduced simply to questions of law,' the judge directed the exceptions to be heard in the first instance at general term, pursuant to section *265*of the Code, and judgment according to the direction and authority of this section must now be given.

The question, therefore, is what judgment should be given on the facts stated in the complaint?

As regards the defendant Daniel W. Lane, the principal debtor *314on the note, the case seems free from all difficulty. The note in suit reads as follows : *“*For value received, I promise to pay,” etc. It was, therefore, joint and several, and the action may be considered as one against the defendant, Daniel W. Lane, on his individual promise. In this view, Victory L. Lane was made defendant, because being a joint owner of- the' note with the plaintiffs, and thus united with them in interest, he refused to join with them in the prosecution of the demand. Code, § 119.

The complaint admits of this vie'jv of the case, as it avers his joint interest with the plaintiffs in the note, charges that he was joint owner thereof with them, and states that he refused to be made a party plaintiff. On the trial also this was shown, or was assumed to be his position. His action throughout the entire suit was hostile to the prosecution of the demand, and no suggestion was made at any time of a want of proof that he had refused to join as plaintiff in the effort to enforce it. Therefore, as above stated, the case on the pleading and proof may be regarded as an action against Daniel W. Lane, on his individual promise; and clearly as to him no defense whatever is established. Admitting that he had a claim jointly with Benjamin and Matthewson, who were his associates in the purchase, against the plaintiffs and Victory L. Lane, for the alleged breach of warranty or for the fraud, such claim could not' avail him in this action, based on his individual liability. The plaintiffs are entitled to judgment against the defendant Daniel W. Lane, for the amount of the note, with costs.

Now as the case stood* at the close of the trial, what judgment should have been awarded, as regards the defendant Victory L. Lane, who it seems is now deceased ? . ..

On the theory above suggested, that the action may be considered as against Daniel W. Lane, on his individual. promise, Victory L. Lane was made defendant on the record, not with a view to enforce a liability against him on the note, but because being united in interest with the plaintiffs,' he refused to join them in the prosecution of the suit. True, the plaintiffs in the complaint demanded judgment against the defendants for the amount of the note, but the prayer for relief formed no part of the cause of action; and, as was well said by Mr. Justice Cady, a party should not suffer at the hands of the court, because he did not know how to pray. The case must be considered on the facts, and the proper judgment should be rendered on them. So. it is the same as if judgment had *315been demanded on the note against Daniel W. Lane alone. All defenses having failed the proper judgment to have been awarded at the close of the trial, in case it had then been directed, as it might have been, was, that the plaintiffs recover against the defendant, Daniel W. Lane, the amount of the note, with costs, but without prejudice to the rights of the plaintiffs, as between themselves and Victory L. Lane, both as to his ultimate liability on the note, and as to the matters growing out'of the manufacture and sale of the cheese and the moneys arising therefrom. Perhaps Victory L. Lane should have been charged jointly with his co-defendant, with the costs of the action, inasmuch as he joined in a groundless defense ; but that is of little moment at this stage of the case, Victory L. Lane being dead.

Now the judgment which would have been right at the close of the trial should now be directed in so far as is admissible under the altered circumstances of the case, growing out of the decease of several of the parties, and should be in substance as above indicated. Such judgment will, as it seems to me, be. just to all parties. It will be effectual to enforce the liability of Daniel W. Lane, according to law, on the facts in so far as they affect him, and will leave all matters between the plaintiffs and the personal representatives of Victory L. Lane open for adjustment on all the facts, as they shall be found to exist between them.

Whether or not a recovery in this action against Victory L. Lane (were he still living), for the full amount of the note could be maintained, it is here unnecessary to determine. But I am under the impression that no recovery could be had against him thereon, except for the balance, which should remain after deducting such portion of the claim as, on an accounting between the parties, should be found to be his just share. However, this question will not here be discussed.

Judgment herein is directed as follows: Judgment ordered against the defendant, Daniel W. Lane, for the amount of the note in suit, with costs, but without prejudice to the rights of the surviving plaintiffs, and the personal representatives of those who are deceased,'as between themselves and the personal representatives of Victory L. Lane, now deceased, both as to the ultimate liability of the latter on said note, and as to the matters growing out of the manufacture and sale of the cheese, specified in the pleadings, and the moneys arising therefrom. *Judgment accordingly.*