Smith v. Crichton

Stewart, J., delivered the opinion of the Court. Exceptions have been taken by the appellant in this case to the ruling of the Court below, in the refusal to grant his three several prayers, and to the verbal instructions given, including the form, as well as the substance of them. The first prayer involves the question whether the plaintiff, having sued the defendant upon a cause of action alleged to be due alone to the plaintiff, can recover under the pleadings, if, upon proof, it appears to have been a claim due the partnership, of which the plaintiff was a member; and whether the defendant can avail himself of such defence unless by plea in abatement. It is a well settled principle that all the parties composing a firm must be named as plaintiffs, unless they are dormant partners, and the omission so to describe them may be taken advantage of by the defendant, under the plea of the general issue, and in actions upon contract, if the cause of action be joint, all the parties, if alive, must join, and where the action is broijght by one of several with whom the contract was made, the defendant can avail himself of the defect, upon evidence at the trial, under the plea of non assumpsit.

The alie ¹⁰⁷ gata and probata must agree, and the plaintiff here, claiming in his individual capacity, must sustain his demand as such, and is not entitled to recover upon a cause of action due to him and others, and the pleadings giving notice of the individual account, the defendant has the right to interpose the objection at the trial, under the general issue, to the competency of any such testimony, without resorting to' plea in abatement. This well established rule is not affected by the provisions of the Code, Art. 75, sees. 26 — 28, in reference to the right of amendment, or by the form of a plea in abatement as prescribed in the 83d division of sec. 22, of the same Article. Assuming there was conflicting testimony as to the true character of the cause of action, and whether it constituted an individual or partnership account, the purport of which it was the province of the jury to determine, upon pertinent instructions from the Court as to the law applicable thereto when their interposition was invoked, we think there was error in the Court below in the