Anderson v. White

Marston, J. This was an action of assumpsit brought against White and eight others as “co-partners doing business under the name and style of- the Michigan Iron Company.” The plaintiff declared upon the common counts, and in his bill of particulars set forth copies of certain promissory notes, purporting to have been given and signed by the Michigan Iron Co., by H. J. Colwell, Treasurer. The defendants pleaded the general issue, and” filed affidavits denying the existence of the partnership ■ and of the execution of the notes. The plaintiff, to maintain the issrre on his part, claims to have introduced evidence on the trial tending to show that four of the defendants were members of the Michigan Iron Company, but it is not claimed or pretended that any evidence whatever was given tending to connect either of the other defendants with this company. This was fatal to the plaintiff’s right to recover, unless as claimed he was entitled to recover a judgment against one or more of the defendants under the provisions of section 5778 of the Compiled Laws. An examination of this section in connection with those preceding it, shows that it has no application to a case like the present, but to eases where, the holder of a “bill of exchange or promissory note, instead of bringing separate suits against the drawers, makers, guarantors [132] of the payment thereof, indorsers, and acceptor of such bill or note” includes all or any of the said parties in one action. Viewing the case in its most favorable" aspects in behalf of the plaintiff, upon his own showing he was not entitled to recover, and it therefore becomes unnecessary to consider the other questions raised. The judgment must be affirmed with costs.' The other Justices concurred.