
    Rowland Sylvester and Another versus Joseph Smith
    A and B form a copartnership, A to find the stock, and B to do the labor, and the profits to be equally divided; A purchases stock on credit for the use of the copartnership, which is charged to him only. In an action against A for the stock, he was held liable, notwithstanding B was not joined with him.
    This action was assumpsit for a quantity of saddle-trees. The defendant pleaded in abatement, that he never made the promise alleged, but jointly with one John Minot.
    
    Issue being joined on this plea, a trial was had, at the last October term in this county, before Thatcher, J., and a verdict taken by consent for the defendant, subject to the opinion of the Court upon the following statement of the evidence agreed by the parties, viz.: —
    On the 1st of August, 1807, the defendant being a merchant in business at Farmington, in this county, and the said Minot carrying on the trade of a saddler in the same town, an agreement was made between _ them to carry on the saddlery business, the defendant to find the stock, and to pay and board a journeyman, and Minot to do the work, the saddles, when finished, to be divided between them, and also the profits of the business. They continued so to transact business for two years and a half. In October, 1807, the defendant agreed with the plaintiff to pay for the saddle-trees which Minot should want, and accordingly afterwards received said saddle-trees from the plaintiffs, then agreed for; and at the conclusion of said term, he took * from the shop all the saddle-trees then on hand, Minot having sold his share to the defendant, who afterwards sold the whole to a Mr. Johnson. During the term, Minot kept a book, in which was entered the stock furnished by the defendant, and also an account of saddlery sold from the shop to divers persons. On the 31st of October, 1807, the defendant agreed with R. Sylvester, one of the plaintiffs, for one hundred saddle-trees, and as many more as the defendant might want, at an agreed price, to be paid for partly in money and partly in saddlery work; and the plaintiffs then delivered the defendant a quantity of trees, in pursuance of said agreement. It was in evidence that the defendant had told a witness, in a conversation relative to his arrangement with Minot, that he, the defendant, was to find and pay for the materials to carry on the saddlery business, Minot to do the work, and the manufactured articles to be divided between them. No indentures of the agreement were produced at the trial, nor was there any evidence of directions to the plaintiffs to charge the saddle-trees to Minot, as well as to the defendant. The saddle-trees were delivered during the aforesaid term; and there was evidence that the defendant had expressed a willingness to pay the plaintiffs’ bill, but not to pay the costs.
    It was agreed that if, upon this evidence, the Court should be of opinion that the plaintiffs could maintain their action against Smith, the verdict should be set aside, and a new trial be had; otherwise that the verdict should stand, and judgment be entei xl accordingly.
    
      Warren for the plaintiffs.
    
      Wilde for the defendant.
   Parker, J.,

delivered the opinion of the Court.

In this action, which is indebitatus assumpsit for a number of saddle-trees, the defendant has pleaded in abatement that he never promised, except jointly with one John Minot, and issue was joined upon that plea. A verdict appears to have been taken by consent, and then the evidence is reported to the Court, and a motion for a new trial is made.

* Whether the ground of this motion is that the verdict is against law, or against evidence, does not appear. No objection was made to the admission or rejection of any evidence, or to any opinion of the judge at the trial; for, indeed, none seems to have been given. The only light, therefore, in which this case can be viewed upon the motion before the Court, is as an agreed statement of facts, from which is to be inferred the point in issue, viz., whether this promise, charged upon the defendant, was a sole promise of his own, or a joint promise with Minot. Now, this is so clearly a question of fact, that I see no propriety in the Court’s Seing called upon to decide it.

The affirmative of this issue is to be proved by the defendant; and the evidence reported may possibly have been satisfactory to a jury, to establish the fact; and had the verdict been rendered in common form, after a trial, it would not probably have been disturbed. But there is nothing so decisive and incontrovertible in the evidence, as to require that the verdict should be established, under the circumstances which attend it.

From the whole evidence, it appears that the purchase of the saddle-trees was made by Smith of the plaintiffs; that although a particular copartnership existed between Smith and Minot, yet there is no evidence that this fact was known to the plaintiffs, or that the saddle-trees were furnished on the credit of the copartnership. Now, in order to discharge the defendant of this action, it ought to have appeared, not only that a copartnership did exist, uut either that it was known particularly to the plaintiffs, or that it was so notorious that they must be presumed to have known it. For notwithstanding a copartnership, either of the copartners may, undoubtedly, contract on his own account, and make himself alone liable for merchandise bought for the copartnership account, if the vendor chooses to accept him.

But, besides the want of evidence on the part of the defendant, the facts proved show that the charge against him * alone was conformable to the terms of the copartnership relied upon in the defence. Smith, the defendant, was to purchase the stock, and Minot was to do the .work. The articles sued for were intended for stock; and although the plaintiffs, notwithstanding this division, could have charged both of them as copartners, had they been knowing to the fact, yet it does not follow that the defendant himself has a right to set up his copart nership against a demand, which he ought, upon principles of justice, and the terms of his own contract, to discharge.

New trial granted. 
      
      
         [See Gow on Partnership, p. 194—196, and cases there cited. — Cary on Partnership, 127. — Dubois vs. Ludert, 1 Marsh. 248. — 5 Taunt. 609. — Ed.]
     