Duff v. Gardner

By the Court— Gilbert, J. An action at law by the plaintiff upon the contract with the city will not lie. The contract was under- seal, and was made with Barrett alone. The plaintiff was not named in it. Where such a contract is entered into, with one partner, he alone can sue upon it. (Lindley on Part., 385; Coll. on Part., Perk. ed., § 652, et seq.); Story on Part., § 244; Robson v. Drummond, 2 Barn. & Adol., 303.) Assuming, then, that there was a bona fide agreement of partnership between the plaintiff and Barrett (a fact which, to say the least, the evidence leaves in very great doubt), yet the contract with the city existed before the partnership, and the plaintiff can take no benefit from it except in the mode in which the contract was made. (Lucas v. De la Cour, 1 [167] M. & S., 249.) No act of the partners could have enabled them to maintain a joint suit at law against the city without the consent of the latter. Consequently the plaintiff, as surviving partner, has no cause of action. (See Gould v. Gould, 6 Wend., 265.) The only person to whom the city was liable was Barrett. The defendant has succeeded to his rights, and is legally entitled to the money brought into court. No facts are stated in the complaint, nor was any evidence given upon the trial creating any right in equity to a recovery of any part of the money by the plaintiff. Nor could the equitable remedy, if there' be one, enable the plaintiff to receive more than his share of the money after deducting the advances made by the defendant. The alleged partnership terminated at the death of Barrett. The defendant, as executor of his estate, was legally bound to fulfill the contract, and is entitled, therefore, in the same capacity to payment for all work done after the death of Barrett. It is not necessary, however, to consider the equitable rights of the parties, for this is an action at law, and not a suit in equity, and the case affords no means of determining those rights. The judgment must be reversed and a new trial granted at circuit, costs to abide the event. Judgment accordingly.