Hilliker v. Loop

Williams, J. The principal question which arises irr this case is whether this suit can be maintained in the name of this plaintiff alone, of whether it should have been brought in the name of himself and Joseph & Joel Tilison. Other questions were raised before the auditor and have' been made here. The decision of the auditor was right on those preliminary questions. The nonjoinder of a person who ought to have been made s plaintiff may be jilead in abatement. It is more usual to take advantage of it on-trial, as a ground of nonsuit for a variance between the declaration and the proof offered. This subject was fully considered in the cáse of Scott vs. Goodwin, 1 Bos. & Pull. 67.- As it may be taken advantage of on trial, and was an answer to the whole demand of the plain tiff, it was a matter to which the parties, in an action orí book might be examined on oath. The plea in abatement which was Sled, set forth a partnership between the plaintiff and one of the Tilitsons only. The judgement thereon did not estoj> the defendant from insisting that the plaintiff and the two-Tilitsons were partners. On the principal question which has been raised here,we are of opinion that the action was well brought. The only ground, on which, it- could be insisted that the Tilit-sons should have joined with the plaintiff, is, either that they were partners or joint owners of the demand in question. It is very doubtful whether the facts found by the auditor do not present a case in which-the plaintiff must have sued alone; whether he was not the sole owner of the Grave Stones after they were lettered, or of the sum due for them after they were sold, and by his contract bound to pay the Tilisons one half of the gross amount of the sales for the stock advanced by them. The parties,, however, have not argued the case on this ground. Considering the Tilíitsons as partners with the plaintiff, as the auditor finds that the plaintiff was to sell the Grave Stones furnished by them, and that he usually sold in his own name, they must be treated as dormant partners- It is true that the auditor does not find that their Was any understanding that their interest in the concern should be concealed, or that the relation in which they stand to the plaintiff was not generall known, but he does find, that the [121] plaintiff usually sold and took notes in his own name, and it does not appear that the defendant supposed, or had •reason to believe, that she was contracting with any other person than the plaintiff. If they were dormant partners, the rule is, that an action, particularly an action on an implied contract, may be maintained by the acting partner alone, or in the name of the acting and dormant, partners. The Court however will see, when the action is brought in •the name of all the partners with whom in law the contract was made, that the defendant may make the same defence whether by offset or otherwise, as if the action had been •brought in the name of the acting partner with whom the contract was actually made. Lloyd vs. Archbowle, 2 Taun. 324; Leveck & Pollard vs. Shaftoe, 2 Esp. 468. Stacy, Ross et al vs. Decy, note to the last case; Cothay et al vs. Fennel et al 10 Barn. & Cres. 671; Robson & Sharpe vs. Drummond, 2 Barn. & Ald. 303. If we consider the Tilitsons as joint owners with the plaintiff of the property sold to the defendant, and of the demand for which this suit is brought, this action was -rightly brought by the plaintiff alone. In the case of Skinner et al vs. Stocks, 4 Barn. & Aid. 437, it was decided that in case of joint owners, where a contract-of sale was made by one, and the purchaser did not know that others were interested in the transaction, an action on such contract might be maintained either by the one with whom the contract was actually made, or in the name of the parties really interested. The case of Lucas et al vs. Delacour, 1 M. & S. 250, and the case of Boardman vs. Keeler & Allen, 2 Vt. Rep. 65, are also authorities in favor of the present action. Indeed it has appeared to me that the latter case is so precisely Ijka the one under consideration, that it must be overruled if we decide in favor of this defendant. In every view which we take of this case we can discover no valid objection against the plaintiff’s maintaining this action. He either must have sued alone, or ho might sue alone or jointly with the Tilitsons, and is therefore entitled-to judgement on the report. The judgement of the County Court is therefore reverá- [122] ed, and judgement must be entered for. the plai cover the sum- found due by the auditor*. Harrington-, for plaintiff. Smalley' & Adams, for- defendant-