Smith v. Cooke

Robinson, J., delivered the opinion of the Court. The question substantially presented by the first bill of exceptions is, whether, in an action against one partner, it is competent for the plaintiff to offer evidence of a partnership, whereby to charge the defendant with goods sold and delivered to the firm. As a general rule, it is true, that in actions upon partnership contracts all the partners ought to be made defendants, but it is also equally well established that the omission to do so can only be taken advantage of by plea in abatement. In the language of Lord Mansfield, in Rice vs. Shute, 5 Burr., 2611, “ All contracts with partners are joint and several: every partner is liable to pay the whole.

In what proportion the others should contribute, is a matter merely among themselves.” If, however, the plaintiff does not declare jointly, the defect can only be pleaded in abatement, and in default of such a plea, “ the joint contract may be offered in evidence in support of the separate contract declared on.” Collyer on Partnership, 715. Accordingly, in Barry vs. Foyles, 1 Peters, 316 , where one partner was sued as the sole contracting party, it was held that evidence of a joint assumpsit was admissible whereby to charge the defendant. In the case now before us, the defendant did not plead in abatement, and the evidence to prove a partnership between the defendant and his son, Samuel J., was, therefore, clearly admissible. The objection to interrogatory No. 2|, on the ground that it was “ leading,” was properly overruled.

Being to the form and manner in which the question was put, the objection should have been made before the commissioner. This was decided in Striker vs. Todd, 13 Sergt. & Rawle, 13, and upon the ground that if made at that time the question might have been modified to meet the objection. ¹⁸⁰ "We concur with the ruling of the Court in the fourth bill of exceptions. Evidence had been offered to prove a partnership between the defendant and his son, Samuel J.; and that the business was carried on in Lemon street, in the name of the son, and at the corner of Howard and Liberty streets, in the name of the father. "We think it was competent and proper for the plaintiff to explain why