The defendant in error had sued out an attachment under the law
of Maryland against Robert Barry, and had filed an account against
James D. Barry, said to have been assumed by Robert Barry, the
plaintiff in error. Robert Barry appeared, gave special bail, and
discharged the attachment. The plaintiff. below then filed a
declaration of
indebitatus assumpsit "for money had and
received" and "for goods sold and delivered," to which Robert Barry
pleaded the general issue. The parties went to trial and a verdict
and judgment were rendered for the defendant in error.
The Court attaches no importance to the variance between the
account filed when the attachment issued and the declaration filed
after the attachment was dissolved by the entry of bail and the
appearance of the defendant. The defendant having pleaded to the
declaration, the cause stood as if the suit had been brought in the
usual manner and no reference can be had to the proceedings on the
attachment.
Where the general agent of parties carrying on business in a tan
yard, instead of a journal of hides received for the parties from
day to day, gave at considerable intervals certificates of the
total amount of hides received from the last preceding settlement
up to the periods when the certificates bore date, such
certificates are equally binding as certificates detailing the
separate transactions of each day, and may be read in evidence to
charge the parties whose agent the person giving the certificates
was.
The principle is that a contract made by co-partners is several
as well as joint, and the assumpsit is made by all and by each. It
is obligatory on all and on each of the partners. If, therefore,
the defendant fails to avail himself of the variant in abatement
when the form of his plea obliges him is give the plaintiff a
proper action, the policy of the law does not permit him to avail
himself of it at the time of trial.
The declaration in an action against one partner only never
gives notice of the claim's being on a partnership transaction. The
proceeding is always as if the party sued was the sole contracting
party, and if the declaration were to show a partnership contract,
the judgment against the single partner could not be sustained.
Where the suit is brought upon a partnership transaction against
one of the partners and the declaration stated a contract with the
partner who issued and gave no notice that it was made by him with
another person, evidence of a joint assumpsit may be given to
support such a declaration, and the want of notice has never been
considered as justifying an exception to such evidence at the
trial.
In the Circuit Court for the County of Washington, the defendant
in error issued an attachment against Robert Barry, the plaintiff
in error, and according to the established practice the plaintiff
in the attachment filed, at the time it was issued, an account or
statement of his claim by which he alleged that Robert Barry, the
defendant below, was indebted to him in the
Page 26 U. S. 312
sum of $3,410.25, for debts due from the firm of James D. Barry
& Co. assumed by him to pay to the plaintiff in the attachment.
This account or statement was accompanied by an affidavit that "it
was just and true, is it stands stated." The plaintiff in error
appeared and gave special bail, and a declaration was then filed,
in
indebitatus assumpsit, &c., and the plea of the
general issue entered.
On the trial of the cause, the plaintiff offered in evidence to
sustain his case three paper writings signed by E. Rice which are
stated
in extenso in the opinion of the Court.
In order to prove the defendant chargeable with the amount
delivered by the plaintiff below, Thomas Rice was produced and
sworn as a witness, who testified as set forth in the opinion of
the Court.
The counsel for the defendant below objected to the evidence,
and the objection being overruled, the case was brought by writ of
error to this Court.
Page 26 U. S. 314
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the
Court.
This is a writ of error to a judgment of the Circuit Court of
the United States for the District of Columbia, sitting in the
County of Washington. The defendant in error had sued out an
attachment against Robert Barry, and had filed an account against
James D. Barry & Co., said to be assumed by Robert Barry.
Robert Barry appeared, gave special bail, and discharged the
attachment. Thomas Foyles then filed a declaration of
indebitatus assumpsit for money had and received and for
goods, &c., delivered, to which Robert Barry pleaded the
general issue, and the parties went to trial.
At the trial, the plaintiff in the circuit court offered in
evidence three paper writings signed by Edmond Rice and also
produced Thomas Rice, a witness, who swore that at the time the
said paper writings bear date and for a long time before and after,
E. Rice, whose name is signed to the said writings, was foreman and
manager of a tan yard in Washington, kept the books, bought and
sold leather, and managed the whole concern for the proprietors;
that the said papers are in his handwriting; that the said Foyles
for about seven years (including the dates of said writings) being
a butcher, was in the habit of delivering from time to time, great
numbers of hides to the said Rice at the said yard and had
contracted with the said Rice to deliver there all the hides of the
cattle slaughtered by him. That the said business was carried on in
the name of James D. Barry, living in Washington, till a
settlement, which witness understood took place between the said
James D. Barry and Robert Barry; after a while it was carried on in
the name of Robert Barry. The witness was not present at the
settlement and does not know its nature or terms. During the time
that the business was carried on in the name of James D. Barry,
Robert Barry (who resided in Baltimore) came about twice a year to
the yard in Washington, where he spent considerable time in
examining and posting the books with the said E. Rice. Upon one of
these occasions he directed a parcel of leather which E. Rice had
prepared to send on to him to Baltimore to be kept in the yard till
he should return to Baltimore or ascertain the price of leather
there and give further directions concerning it. During all the
time the business was conducted at Washington in the name of James
D. Barry, the greater part of the leather manufactured in the yard
was sent on to Baltimore to the defendant and there disposed of by
him.
The following are the paper writings offered in evidence to
which the testimony of Thomas Rice refers.
Page 26 U. S. 315
No. 1. Balance due by James D. Barry to Thomas
Foyles on settlement, say $1.640.75 up to this
date, say April 5, 1817 . . . . . . . . . . . . $1,640.75
EDMOND RICE
No. 2. Amount of hides and skins received of
Mr. Thomas Foyles, from the 1st of April,
1817, to this date, say December 27, 1818
755 hides at 3.75 per hide. . . . . . . . . . 2,831.25
10 Sheepskins at 50 cents each . . . . . . . 5.00
7 Calf skins do. at $1 each. . . . . . . . . 7.00
---------
$2 843.25
January 13, 1819 EDMOND RICE
No. 3. Amount of hides and skins received of
Mr. Thomas Foyles, from 2 February, 1819, to
2 December, 1819
346 hides at $3.75 each. . . . . . . . . . . . $1,297.50
EDMOND RICE
The counsel for the defendant objected to the admission of these
papers. His objection being overruled, an exception was taken to
the opinion.
A verdict was found for the plaintiff below, the judgment on
which has been brought into this Court by writ of error.
In argument some observations were made on the variance between
the manner in which the plaintiff in error was charged in the
account filed in the attachment, and in the declaration on which
the cause was tried. In the account, he is charged on his assumpsit
for a sum due from James D. Barry & Co. The declaration charges
him as being originally indebted on a transaction with himself. The
Court attaches no importance to this variance, because when the
attachment was discharged by the appearance of the defendant and
giving bail, and the plaintiff in consequence thereof filed a
declaration to which the defendant pleaded, the cause stood in
court as if the suit had been brought in the usual manner, and no
reference can be had to the proceedings on the attachment.
Considering the case as it is made out in the pleadings, the
defendant in the circuit court is charged on his original liability
for a transaction of his own. Edmond Rice, having been manager of
the whole concern for the proprietors of the tan yard in
Washington, with power to buy hides and sell leather, there can be
no doubt of his power to charge them for skins and hides received
by him in the course of business. The papers No. 2 and 3 purport on
their face to be an account of transactions of this description.
The only objection made to them is that instead of the journal of
hides delivered
Page 26 U. S. 316
on each day, the manager has given at considerable intervals the
total amount of hides received from the last preceding settlement
up to that time. We are not aware of any principle which can make
such a general certificate less binding than one detailing the
separate transactions of each day. The proprietors themselves, or
either of them, might have made the same acknowledgment, and we
perceive no reason why the acknowledgment of the manager, so far as
respects the form in which it is made, should not be of the same
obligation as that of the proprietors.
The paper No. 1 is more questionable. It does not purport to be
given for hides received at the tan yard, nor does it express the
items which constitute the charge, but it is said to be the balance
due from James D. Barry (in whose name the business was conducted)
"on settlement." Edmond Rice, the person who gave this certificate,
had authority to give it on account of the transactions of the tan
yard, and it does not appear that he had authority to give it on
any other account. It is an additional circumstance of no
inconsiderable weight that the account closes on 5 April, 1817, the
day on which the subsequent account, which is avowedly for hides,
commences. These circumstances combined were, we think, sufficient
to justify the submission of this paper also to the jury.
The next objection to the admission of these papers is that the
plaintiff in the circuit court has failed to prove that Robert
Barry was one of the proprietors of the tan yard while the business
was conducted in the name of James D. Barry.
The evidence on this point was given by Thomas Rice, and has
been already fully stated. We think the testimony of a partnership
was very strong. It could not with propriety have been withheld
from the jury.
The question on which the plaintiff in error most relies,
remains to be considered.
This suit is brought on a partnership transaction against one of
the partners. The declaration states a contract with the partner
who is sued and gives no notice that it was made by him with
another. Will evidence of a joint assumpsit support such a
declaration?
Although it has been held from the 36 H. 6. Ch. 38, that a suit
against one of several joint obligors, might be sustained, unless
the matter was pleaded in abatement, yet with respect to joint
contracts, either in writing or by parol, a different rule was
formerly adopted upon the ground of a supposed variance between the
contract laid, and that which was proved. This distinction was
overruled by Lord Mansfield in the case of
Rice v. Shute,
5 Burn 2611. The same point was afterwards
Page 26 U. S. 317
adjudged in
Abbott v. Smith, 2 W.Black. 695, and has
been ever since invariably maintained. The principle is that a
contract, made by co-partners, is several, as well as joint, and
the assumpsit is made by all and by each. It is obligatory on all
and on each of the partners. If, therefore, the defendant fails to
avail himself of the variance in abatement when the form of his
plea obliges him to give the plaintiff a proper action, the policy
of the law does not permit him to avail himself of it at the
trial.
The course of decisions since the case of
Rice v. Shute
has been so uniform that the principle would have been considered
as too well settled for controversy, had it not lately been
questioned by a judge from whose opinions we ought not lightly to
depart.
That judge supposed that if the defendant had no notice in the
previous stage of the proceedings, which might inform him of the
nature of the action, he was guilty of no negligence in failing to
plead in abatement, and ought not to be deprived of his defense at
the trial.
But the declaration never gives this notice where the suit is
brought against one only of the partners. He is always proceeded
against as if he were the sole contracting party, and if the
declaration were to show a partnership contract, the judgment
against the single partner could not be sustained. The case cited
by Mr. Sergeant Williams in note 4 on the case of
Caleb v.
Vaughan, 1 Saund. 191, n. 4, shows conclusively that the want
of notice has never been considered, since
Rice v. Shute
as justifying this exception to the evidence at the trial.
We think there is no error, and the judgment is
affirmed.
