Keigher v. Dowlan

Mitchell, J. The point raised in this case is fully covered by ■Gen. St. 1878, c. 66, § 266, to the effect that whenever two or more ■persons are sued as joint defendants, and on the trial the plaintiff fails to prove a joint cause of action against all, but proves a •cause of action against one or more of the defendants, judgment may ,be rendered against him or them against whom- the cause of action [575] is proved. Miles v. Wann, 27 Minn. 56, (6 N. W. Rep. 417.) Here the plaintiff sued the three defendants, alleging that they were partners. The proof was that the contract declared on was made by two of the defendants, but was not within the scope of the partnership, and hence no cause of action was proved against the third defendant. It can make no difference whether the failure to prove the cause of action against one of the defendants results from failure to prove, as in Miles v. Wann, supra, that he wás a partner, or, as in the present case, from the fact that the subject of the contract was not within the scope of the partnership business. The appellants’ contention proceeds upon the erroneous idea that the action was not against the individuals composing the firm, but against the firm, as a sort of entity. Order affirmed.