This action was commenced by the appellee, Marie Sellar "d/b/a Alaska Bookkeeping & Secretarial Service", to obtain payment of $2,306 for bookkeeping services performed for appellant Smith. At the beginning of the trial appellee's counsel stated that services had been performed by a partnership consisting of Marie Sellar and Misha Bigovich, that the partnership name was Alaska Bookkeeping & Secretarial Service, and that the action was being brought by Marie Sellar on behalf of the partnership. At that point Smith moved for judgment on the grounds that the partnership was not a party to the action and that appellee had failed to allege an assignment to her of the debt due the partnership. The court reserved decision on the motion and proceeded with the trial of the action.
Appellee produced evidence showing that between July 1956 and May 1958 bookkeeping
At the close of appellee's case Smith renewed his motion for judgment, and when it was denied rested his case without producing any evidence. Judgment was entered for appellee for the amount demanded in the complaint.
On this appeal Smith does not contend that the bookkeeping services were not furnished, nor that he does not owe the amount claimed. He challenges the judgment on two grounds: (1) that Marie Sellar, as an individual partner, could not bring this action in her own name for a debt owing a partnership without joining as party to the action either the partnership
The essence of Smith's case is his argument that the complaint failed to show Marie Sellar's capacity to sue, either on behalf of the partnership or as assignee of the claim. This argument overlooks the plain language of Civ.R. 9(a) which states that "It is not necessary to aver the capacity of a party to sue * * *."
If Smith had wished to raise the issue of capacity, he ought to have done so "by specific negative averment, which shall include such supporting particulars as are peculiarly within the pleader's knowledge."
A general denial of this sort is not enough to raise the issue as to capacity to sue.
It is readily apparent that Smith had notice, at the time of the commencement of the action, that Marie Sellar was suing for a debt he owed the Service. If he had any objection to her right to obtain payment, either as partner on behalf of a partnership or as assignee of the claim, he was required to point that out specifically in his answer. By failing to do this he waived the objection.
The judgment is affirmed.