Cleveland v. Woodward

The opinion of the court was delivered by Williams, Ch. J. This case seems to be conclusively settled by authority. The plaintiff had dealings with the defendant. The only dispute is in relation to the four last items in the plaintiff’s account, which were for labor per [305] formed on a farm, of which the defendant and Stillman Woodward were owners, and which they carried on in company. The defendant contracted with the plaintiff for the labor, who did not know of the existence of the company until after the commencement of this suit. If these .items are disallowed, the balance would be due to the defendant. It is to be remembered that it is only in this action that advantage can be taken of the non-joinder of a joint debtor, on trial of the merits. It is settled that a plaintiff cannot be compelled to be a creditor of two, one of whom he did not know, as his joint debtors, and not be the sole creditor of the one he does know. In the case of Dubois v. Ludert, 5 Taunt. 609, it was decided that if a man enters into a contract with one person, not knowing he has a partner, it is competent for that partner, being sued, to plead, in abatement, that he has other partners who are not joined. That case, however, stands alone, and is opposed to the decision in the case of Baldney v. Ritchey, 1 Stark. N. P. C. 338, Doe v. Chippenden, there cited; to the opinion of Lord Eldon, in ex parte Norfolk, 19 Ves. 455, and directly overruled by Lord Tenterdon, in Mallet v. Hook, 1 M. & M. 88, and by the court of king’s bench, in the case of Mantort v. Saunders, 1 B. & Ad. 398. By these cases, it is fully settled that, even in the case of a general partnership, if a contract is made with one of two partners alone, and the plaintiff is not aware that he is dealing with the partnership, and it is not disclosed to him by the defendant with whom he deals, the non-joinder cannot be pleaded in abatement. A fortiori, it cannot be done in the action on book, where a failure to recover might endanger all the security he may have by attachment for his débt. The judgment of the county court is, therefore, affirmed.