Joyslin v. Taylor

The first ground for the motion for a non-suit fails on account of the evidence stated in the case. It is *270entirely immaterial whether the charges on the boohs prove the plaintiff’s claim or not, for the case finds that the defendant admitted that he had the goods and had never paid for them.

But it is contended that the plaintiff has declared on a promise to himself, while the evidence tends to prove only a promise to Joyslin and Norris, during the lifetime of the latter.

In the case of Jell v. Douglas, 4 B. & A. 374, the plaintiff declared on a promise to himself alone. He was a surviving partner, but that fact did not appear in the declaration. There was proof of it, however, upon the trial. It was contended that this was a variance, as the contract stated in the declaration was with the plaintiff alone, while that given in evidence was with the plaintiff and another. It was said by Abbott, C. J., that if one of two joint contractors sue, both being alive, that is a variance, and a good defence upon the general issue; and that it seemed therefore to be reasonable that where a surviving joint 'contractor sues, the fact of his being survivor should appear in the declaration. In the case of Webber v. Tivill, 2 Saund. 121, n. 1, it is said that if any of the persons with whom a contract has been made are dead, that fact should be stated.

In the case of Israel v. Simmons, 2 Stark. Rep. 314, the action was brought by four plaintiffs to recover sums alleged to be due for seats in a Jewish synagogue. It appeared on the trial that there were formerly five persons to whom the rent was due, but that one of them, Jacob Hart, died after the time when the rent accrued which was sought to be recovered. The declaration stated that the defendant was indebted to the plaintiffs, but the fact of their survivorship was not alleged, and upon the objection that the declaration was not supported by, the evidence, the plaintiffs were nonsuited. Fitzgerald v. Boehm, 6 Moore 332.

In the present case the plaintiff is described as surviving partner, and the debt is alleged to be due him in that capacity, and the motion for a nonsuit must be overruled.

The defendant moves in arrest of judgment, because it does not appear by the writ of whom the plaintiff was the surviving *271partner. It appears that he was the surviving partner of the firm of Joyslin & Norris; and if it is necessary to go farther, and exclude the conclusion that there was a dormant partner, not named, then the motion must prevail. But in an action by a firm the name of a dormant partner need not be used. Clark v. Miller, 4 Wend. 628; Clarkson v. Carter, 3 Cowen 84. It is not necessary that the dormant partner should join with the ostensible partners of the firm in an action against a person who dealt only with the ostensible partners. Lloyd v. Archbowle, 2 Taunt. 324. If, then, it be not necessary that they should join in a suit, it is unnecessary that they should be named as members of the firm of which the plaintiff was the surviving partner, or that it should be averred that there were no other partners than Joyslin and Norris.* We think, therefore, that the motion should be overruled.

Judgment on the verdict.