Morse v. Chase & Co.

The opinion of the Court was delivered by Sergeant, J. —The three errors assigned are in substance the same, and amount to this, that Sill was a partner of the plaintiff at the time of the contract, and ought to have been joined in the suit. There can be no doubt that if Sill was ah acting partner of Chase at [458] that time, the objection could be taken advantage of on the general issue of non assumpsit, which goes to the whole title set out by the plaintiff in his narr. The defendant is not obliged to plead in abatement the non joinder of a partner who ought to have been a co-plaintiff ; but it must appear that such partner was an acting partner; for if he was merely a dormant partner, he need not be joined in the S'üit. Wilson v. Wallace’s Executors, 8 Serg. & Rawle 55; Porter v. Cresson, 10 Serg. & Rawle 257; Lloyd v. Archbold, 2 Taunt. 327. The defendant’s difficulty in the present case is, that the special verdict merely finds that “ Thomas H. Sill was a partner in the firm of Joseph L. Chase & Co. at the time of the contract mentioned in the plaintiff’s declaration.” But whether he was an acting or a dormant partner is not found, and is a fact material to the plaintiff’s right of recovery: because, in the latter case, the objection was unfounded; in the former, it would prevail. This fact not having been found by the jury, it could not be determined by the court below. It is the business of the jury in finding a special verdict to inform the court of all material facts from which the law is to arise: the court cannot conjecture them, nor will it infer them to defeat the plaintiff’s recovery. Where the special verdict is defective, the practice is to move to amend from notes of counsel or on affidavit; and in order to sustain the merits, the court would not hesitate to do so. No application of this kind was made; and the objection itself is merely technical, and destitute, of any merits whatever. As to the objection that the suit is on its face erroneously brought by Joseph L. Chase & Co., and this may be taken advantage of in error; it is a sufficient answer, that after verdict the court will presume Joseph L. Chase & Co. to be the names of real persons, where the contrary does not appear. In Porter v. Cresson, 10 Serg. & Rawle 257, the court said they would presume the plaintiff’s names to be Cresson, Wiston & Co.; and in Armstrong v. Robinson, 5 Gill & Johns. 412, in a suit on a bond signed A. & Co., the writ and declaration being against A. only, the court would not, on general demurrer, assume that there was any other living person jointly bound with A. at the time the suit was brought, nor that A. was not A. & Co. Here Joseph L. Chase & Co. may be presumed to be the real names of the parties with whom the defendant contracted; for it is not said in the special verdict that Thomas H. Sill was the partner designated as the Co. in the firm of Joseph L. Chase & Co., but merely that he was a partner in that firm ; which he might have been, though it consisted of three persons, and he was a dormant partner. Judgment affirmed.