ROBERT BARRY, PLAINTIFF IN ERROR, v. THOMAS FOYLES.
January Term, 1828
ERROR to the Circuit Court for the county of Washington.
In the Circuit Court for the county of Washington, the defendant in error issued an attachment against Robert Barry, the plaintiff in error; and according to the established practice, the plaintiff in the attachment, filed, at the time it was issued, an account or statement of his claim; by which he alleged that Robert Barry, the defendant below, was indebted to him in the sum of $3,410 25, for debts due from the firm of James D. Barry & Co. assumed by him to pay to the plaintiff in the attachment. This account or statement, was accompanied by an affidavit, that 'it was just and true, is it stands stated.' The plaintiff in error appeared and gave special bail; and a declaration was then filed, in indebitatus assumpsit, &c., and the plea of the general issue entered.
On the trial of the cause, the plaintiff offered in evidence to sustain his case, three paper writings, signed by E. Rice, which are stated, in extenso, in the opinion of the Court.
In order to prove the defendant chargeable with the amount delivered by the plaintiff below, Thomas Rice was produced and sworn as a witness; who testified, as set forth in the opinion of the Court.
The counsel for the defendant below objected to the evidence, and the objection being overruled, the case was brought by writ of error to this Court.
Messrs. Coxe and Worthington, for the plaintiffs in error, contended.
1st. That the evidence is not competent and sufficient to charge the plaintiff in error, upon his alledged assumpsit.
2nd. That under the declaration of indebitatus assumpsit, the evidence is also incompetent and insufficient.
By the statement filed upon oath, the claim of the plaintiff is averred to be a debt due by James D. Barry, & Co., which the defendant below assumed to pay.
The evidence on the part of the plaintiff below did not show such a firm as James D. Barry, & Co.; nor did the same prove an implied, much less an express assumpsit by Robert Barry.
The plaintiff below complied with the law of Maryland, by stating his cause of action, when the attachment was issued; and the defendant appeared and entered a plea thereto. Subsequently, he filed a declaration of indebitatus assumpsit, which was irregular. This cannot be done, and therefore the evidence applied only to the first declaration; which stated an assumption of the debt of James D. Barry, & Co., and no proof was offered of such assumption. The evidence does not show any connexion between Rice and the defendant, nor any authority from Robert Barry, by which his acts or acknowledgments could become binding on him; the plaintiffs did not therefore make out the case spread upon the record by the first declaration.
The papers signed by Rice were improperly admitted. No. 1. is given in the name of James D. Barry. The other two refer to transactions in which the defendant is not named.
2. Upon a general declaration in assumpsit, the issue is not maintained by proof of a partnership debt.
The general rule, that the defendant, who is charged separately for a joint debt, should plead this in abatement, does not apply, when the plaintiff has by his pleadings given no notice of the nature of his demand, until the time of trial, Jordan vs. Wilkins, 3 Wash. Decis. 112. In the case of Rice vs. Shout, 5 Burr, 2611, Lord Mansfield adverts strongly to the circumstance, that the defendant was the person with whom the business was transacted. Also cited Abbott vs. Smith, 2 Black. 947.
3. The agency of Rice was a special agency, and his acknowledgments were not evidence. He might have made entries in the books to charge his principal, but no more. 1 Esp. Rep. 375. 2 Stark. Evid. 60. Nor does his testimony prove the interest or partnership of Robert Barry, in the dealings to which the papers have reference. 3 Stark. Evid. p. 4. 1067.
Mr. Jones for the defendant.
The objections to the proceedings, as they apply to the first and second declarations, have no force. The account filed, when the writ issued, against Robert Barry alone, states his assumption of the partnership debt; and if this was objectionable, it should have been pleaded in abatement.
It was at one time supposed, that in all cases of attachment a second declaration should be filed; but this was afterwards considered as not essential; but the party has at all times a right to vary his pleadings, and even at 'the rules' to file a new declaration. To the pleadings in this case, no exception was taken, nor was any objection made at the trial.
The objection to the evidence, as applicable to the account filed, ought not to prevail. If Robert Barry was a partner in the transactions, to which the papers refer, the law raises an assumption. The plaintiff is not tied down to prove an express assumpsit, when proof is given that he was a partner; and an action will lie against one partner alone, on his express assumpsit.
2. The evidence of debts due by J. D. Barry, & Co. was properly applied to charge Robert Barry, the plaintiff in error. There must always be a plea in abatement, where the parties are not joined. As to joinder of parties; Mr. Foot cited, with other cases, Minor vs. the Mechanics Bank of Alexandria, decided ante page 46, this Term; and also 5 Burr, 2611.
If the evidence could in any way charge the defendant below, it was admissible. Partnership may be proved by circumstances; and the Court did not decide upon the effect of the testimony, but only that it should go, generally, to the Jury. This is a case in which the principal is charged with the acts of the agent, within the scope of his authority; the business of the concern being intrusted to the management of Rice by the parties.
Mr. Chief Justice MARSHALL delivered the opinion of the Court.
This is a writ of error to a judgment of the Circuit Court of the United States for the district of Columbia, sitting in the county of Washington. The defendant in error had sued out an attachment against Robert Barry, and had filed an account against James D. Barry & Co., said to be assumed by Robert Barry. Robert Barry appeared, gave special bail, and discharged the attachment. Thomas Foyles then filed a declaration of indebitatus assumpsit, for money had and received, and for goods, &c. delivered; to which Robert Barry pleaded the general issue, and the parties went to trial.
At the trial, the plaintiff in the Circuit Court, offered in evidence, three paper writings signed by Edmond Rice; and also produced Thomas Rice, a witness, who swore, that at the time the said paper writings bear date, and for a long time before and after, E. Rice, whose name is signed to the said writings, was foreman and manager of a tan-yard in Washington; kept the books, bought and sold leather, and managed the whole concern for the proprietors; that the said papers are in his hand writing; that the said Foyles, for about seven years, (including the dates of said writings) being a butcher, was in the habit of delivering, from time to time, great numbers of hides, to the said Rice, at the said yard, and had contracted with the said Rice to deliver there all the hides of the cattle slaughtered by him. That the said business was carried on in the name of James D. Barry, living in Washington, till a settlement, which witness understood took place between the said James D. Barry and Robert Barry; after a while it was carried on in the name of Robert Barry. The witness was not present at the settlement, and does not know its nature or terms. During the time that the business was carried on in the name of James D. Barry, Robert Barry (who resided in Baltimore) came about twice a year to the yard in Washington; where he spent considerable time in examining and posting the books, with the said E. Rice. Upon one of these occasions, he directed a parcel of leather, which E. Rice had prepared to send on to him to Baltimore, to be kept in the yard till he should return to Baltimore, or ascertain the price of leather there, and give further directions concerning it. During all the time the business was conducted at Washington in the name of James D. Barry, the greater part of the leather manufactured in the yard was sent on to Baltimore to the defendant, and there disposed of by him.
The following are the paper writings offered in evidence, to which the testimony of Thomas Rice refers.
No. 1. Balance due by James D. Barry to Thomas Foyles on settlement, say sixteen-hundred and forty dollars seventy-five cents, up to this date, say April 5th 1817.
No. 2. Amount of hides and skins received of Mr. Thomas Foyles, from the 1st of April 1817, to this date, say December 27th, 1818.
755 hides at 3 75 per hide, 2831 25
10 Sheep skins at 50 cents each, 5 00
7 Calf skins do. at $1 each, 7 00
January 13th, 1819.
No. 3. Amount of hides and skins received of Mr. Thomas Foyles, from the 2d of February 1819, to 2d of December 1819.
346 hides at $3 75 each, $1297 50
The counsel for the defendant objected to the admission of these papers. His objection being overruled, an exception was taken to the opinion.
A verdict was found for the plaintiff below, the judgment on which has been brought into this Court by writ of error.
In argument, some observations were made on the variance between the manner in which the plaintiff in error was charged in the account filed in the attachment, and in the declaration on which the cause was tried. In the account, he is charged on his assumpsit, for a sum due from James D. Barry & Co. The declaration charges him as being originally indebted on a a transaction with himself. The Court attaches no importance to this variance, because when the attachment was discharged, by the appearance of the defendant, and giving bail, and the plaintiff, in consequence thereof, filed a declaration, to which the defendant pleaded, the cause stood in Court, as if the suit had been brought in the usual manner; and no reference can be had to the proceedings on the attachment.
Considering the case, as it is made out in the pleadings, the defendant in the Circuit Court is charged, on his original liability, for a transaction of his own. Edmond Rice, having been manager of the whole concern, for the proprietors of the tan-yard, in Washington, with power to buy hides and sell leather, there can be no doubt of his power to charge them for skins and hides, received by him in the course of business. The papers No. 2 and 3, purport, on their face, to be an account of transactions of this description. The only objection made to them, is, that instead of the journal of hides delivered on each day, the manager has given, at considerable intervals, the total amount of hides received from the last preceding settlement, up to that time. We are not aware of any principle which can make such a general certificate less binding, than one detailing the separate transactions of each day. The proprietors themselves, or either of them, might have made the same acknowledgment; and we perceive no reason why the acknowledgment of the manager, so far as respects the form in which it is made, should not be of the same obligation as that of the proprietors.
The paper No. 1, is more questionable. It does not purport to be given for hides received at the tan-yard, nor does it express the items which constitute the charge; but it is said to be the balance due from James D. Barry, (in whose name the business was conducted,) 'on settlement.' Edmond Rice, the person who gave this certificate, had authority to give it on account of the transactions of the tan-yard; and it does not appear that he had authority to give it on any other account. It is an additional circumstance, of no inconsiderable weight, that the account closes on the 5th of April, 1817, the day on which the subsequent account, which is avowedly for hides, commences. These circumstances, combined, were, we think, sufficient to justify the submission of this paper, also, to the jury.
The next objection to the admission of these papers, is, that the plaintiff in the Circuit Court, has failed to prove that Robert Barry was one of the proprietors of the tan-yard, while the business was conducted in the name of James D. Barry.
The evidence, on this point, was given by Thomas Rice, and has been already fully stated. We think the testimony of a partnership was very strong. It could not, with propriety, have been withheld from the jury.
The question on which the plaintiff in error most relies, re mains to be considered.
This suit is brought on a partnership transaction, against one of the partners. The declaration states a contract with the partner who is sued, and gives no notice that it was made by him with another. Will evidence of a joint assumpsit support such a declaration?
Although it has been held from the 36 H. 6. Ch. 38, that a suit against one of several joint obligors, might be sustained, unless the matter was pleaded in abatement; yet with respect to joint contracts, either in writing, or by parol, a different rule was formerly adopted; upon the ground of a supposed variance between the contract laid, and that which was proved. This distinction was overruled by Lord Mansfield, in the case of Rice vs. Shute, 5 Burn, 2611. The same point was afterwards adjudged, in Abbott vs. Smith, 2 W. Black. 695; and has been ever since invariably maintained. The principle is, that a contract, made by copartners, is several, as well as joint, and the assumpsit is made by all, and by each. It is obligatory on all, and on each of the partners. If, therefore, the defendant fails to avail himself of the variance in abatement, when the form of his plea obliges him to give the plaintiff a proper action, the policy of the law does not permit him to avail himself of it, at the trial.
The course of decisions, since the case of Rice vs. Shute, has been so uniform, that the principle would have been considered as too well settled for controversy; had it not lately been questioned by a Judge, from whose opinions we ought not lightly to depart.
That Judge supposed, that if the defendant had no notice in the previous stage of the proceedings, which might inform him of the nature of the action, he was guilty of no negligence in failing to plead in abatement, and ought not to be deprived of his defence at the trial.
But the declaration never gives this notice, where the suit is brought against one, only, of the partners. He is always proceeded against, as if he were the sole contracting party; and if the declaration were to show a partnership contract, the judgment against the single partner could not be sustained. The case cited by Mr. Sergeant Williams, in note 4, on the case of Caleb vs. Vaughan, 1 Saund. 191, n. 4, shows conclusively, that the want of notice has never been considered, since Rice and Shute, as justifying this exception to the evidence at the trial.
We think there is no error, and the judgment is affirmed.
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