
    LAWRENCE vs. MANGOLD.
    A partner brought suit against the firm for salary after he had sold his interest, but joined himself as a defendant; seven years afterwards at the trial, the Court permitted his name to be stricken off.
    A former partner can recover his salary from the firm in assumpsit where he has sold his interest in the partnership and there has been an express promise to pay.
    Error to Court of Common Pleas of Schuylkill County. No. 311, January Term, 1880.
    This was an action of assumpsit brought by one partner against the rest after he had left the firm, for salary. The suit was brought by Mangold against the firm, styling himself as one of the firm. The Court below allowed his name to be struck off as a defendant upon the affidavit of his counsel that it was inserted by mistake. First error.
    The defendants when the case was on the trial list, asked the Court to withdraw all pleas on account of the amendment before stated. This was refused, and forms the subject of the second error.
    The charge of the Court was delivered,May 20,1879, as follows per
    Walker, J.:
    This is an action on the case- brought by Philip Mangold against Jacob S. Lawrence, Michael Merkle and Franklin Lawrence, late of the firm of Merkle & Company, upon a claim amounting to $385.85, being the balance of salary due him for services performed to the firm as superintendent at a given salary of $1,500 a year; this being the balance due on the 31st of December, 1871. It appears that an evidence that a lease was granted by John Gilbert and others on the 1st of January, 1868, to Jacob S. Lawrence, Michael Merkle, Franklin C. Lawrence and this plaintiff, 1 ffiilip Mangold, for a right to work certain veins of coal on the George Flower tract, in Mahanoy township, owned by Gilbert and .others.
    When they went into partnership in the mining of coal it was understood that three of the partners (who were to be the working members of the firm) were to draw out from the firm $1,500 a year, or $125 a month, as salary or wages, or as to pay for their work, at least it should not exceed that amount, and that it should be considered as wages of salary for the work performed. One of the partners, Mr. Frank Lawrence did no service and received no compensation.
    The plaintiff has brought this action against the remaining partners.
    [It appears from the evidence that on the 19th of December he sold out by an article of agreement and transferred all his right, title and interest in the partnership, affairs and assets of the company to Jacob S. Lawrence for the sum of $7,128.72, that there was $3,500 paid in cash, and for the balance $3,628.72, a note was given, which note was paid at maturity by Lawrence & Merkle.] This claim is therefore for the balance of his salary as superintendent.
    The plaintiff" and defendants have submitted points to us which we propose to answer when we conclude our charge. Some of them involving the right of the plaintiff to recover against these defendants on the ground that he has sued the wrong parties, and that there is no such firm as Merkel & Company. We say as to that; this is a question of law for the Court about which you have nothing to do, whether this action is brought right or wrong. If we are wrong there is a tribunal that will set us right; you have to determine these facts, and that in accordance with law as we shall instruct you.
    Both the plaintiff" and defendants agree upon the main features of the law as we understand. The authorities one and all claim that one person cannot sue his remaining partners without a settlement of the partnership affairs, and an express promise on their part to pay the amount due. If one partner has paid more than his share he can not recover it back unless he proceeds by an account rendered, or by a bill in equity. For to prevent such burdensome litigation of the law has wisely provided that partnership accounts shall be settled in a proceeding either by an action on account rendered, or by a bill in equity, and in the absence of an express promise to pay assumpsit will not lie by one partner against another to recover for advances until there has been a settlement of the partnership account; Leidy vs. Messinger, 21 P. F. Smith, 177.
    [That we take it Í3 the law acquiesced in by both the plaintiff and defendants’s counsel in this case, and therefore we say to you that Mr. Mangold, being a partner, could not sustain this action unless the jury find that there was a settlement and an express promise to pay by the remaining partners. Those are the only facts that you will have to determine, and in order to do this you must take all the evidence into consideration. You must take the acts of the parties and their testimony.]
    The plaintiff swears that this amount was due to him, and that he sold all his right, title and interest in the partnership matter by the article of agreement of the 19th day of December, 1871, that after the 1st of January he received two payments, one was’ $600 and the other was $500, and he claims therefore the balance, he also testified that this balance was due to him, that he called upon Mr. Merkel and he, Merkel, said he thought Mr. Lawrence, who was financial agent of the firm, ought to pay him; that Mr. Lawrence put him off until the next day, saying he was going away, when he should call; he further testifies that he did call, and Mr. Jacob S. Lawrence told him he would retain the balance of the claim for house rent. This is the evidence as bearing upon the question of a settlement, and of the ascertained amount due by these parties.
    On the part of the defendants they contend there was no settlement. Their defense is two-fold ; that under the article of agréement of the 19th of December, 1871, Philip Mangold sold to Jacob S. Lawrence all his estate, right, title, interest, property, claim, demand of, in to or out of all that indenture of coal lease, lease-hold estate and .colliery situated in the Township of Mahanoy, now worked by the firm of Lawrence, Merkel & Company, and the plaintiff is paid in full, and Mr. Lawrence swears that there was no more coming to him after the deduction of the house rent, that whatever was the balance he kept as house rent, but he says from the settlement there was none. Mr. Lawrence says that he paid $500 and $600 in January by note and check in addition to the $7,128.71, which was paid in this way, $3,500 in cash and $3,678.72 by note ; that settled that matter, and was the consideration of the transfer of all his right, title and interest in the machinery, fixtures, lease, good will and assets of the firm. This $1,100 that was paid in January, 1872, was paid on account of the wages or salary of the plaintiff; you must not confuse the two amounts.
    The fact that you have to find is, was there a settlement,' and if so, was there an express promise to pay for the services ? That you must determine from the evidence whether the amount was ascertained, and whether there was an express promise to pay it.
    [The plaintiff swears that he spoke to Mr. Merkel and said he wondered why Mr. Lawrence did not pay him the amount, and Mr.. Lawrence said he retained that for house rent. We say that if Mr. Lawrence was the financial agent of the company, and promised to pay the plaintiff’s claim, such promise on the part of Jacob S. Lawrence, acting as the financial agent of the company, was within the scope of his authority and would bind all the other partners if they received the benefit of the services rendered.
    Therefore we say that the only facts that you have to find are whether there was a settlement, and whether there was such an express promise to pay on the part of the partners orthe financial agent as would come within the meaning of the law as we have laid it down to you. If you find these facts then the plaintiff would be entitled to the amount of the claim with interest from the 31st of January, 1872, to the present time.
    If you think there was not a settlement and there was not a promise to pay expressed either on the part of any of these partners, or by their agent, acting within the scope of hi's authority, then he would not be entitled to recover in this action.] The law has been embodied in the points of the plaintiff' and defendants, and we will in addition to what we have said charge you on these points.
    The plaintifi has requested the Court to charge the jury as follows :
    1. If the jury believe that there was a purchase of the interest of the plaintiff in the partnership, and that a settlement was made with the said firm by which the said plaintiff was to receive the sum claimed to be due on account of his salary, then the action is properly brought, and the jury should find for the plaintiff the amount due the plaintiff with interest from the time it was due.
    Answer. — This we affirm if the jury find that there was an express promise pay by the defendants.
    2. If the jury believe that there was a settlement, and that the defendant promised to pay the amount claimed to be due on the the settlement, the action is properly brought and there may be a recovery by the plaintiff, if the jury shall determine from the evidence of the case that there is anything due from the defendants to the plaintiff.
    Answer. — We affirm this point if there was an express promise to pay by the defendants.
    The defendants have requested the Court to charge the jury as follows:
    1. This being a joint action by the plaintiff against his three copartners, trading in the name of the firm which consisted of plaintiff as well as his three copartners, the defendants, and the evidence for both plaintiff and defendants, showing that the undertaking and liability, if any, was the joint liability and undertaking of the plaintiff as well as the defendants trading as a firm in the name of Lawrence, Merkel & Company, the plaintiff is not entitled to recover.
    Answer. — We affirm this point unless there was a settlement of the partnership affairs and an express promise to pay on the part of the defendants.
    2. This in an action of assumpsit by one partner against his three copartners jointly, the plaintiff is not entitled to recover, even where there was a full settlement of, the partnership. Contribution must be enforced by separate actions against the copartners if the action be assumpsit.
    Answer. — This is true, unless there was an express promise to pay the plaintiff his claim by the defendant after the settlement.
    3. This being joint action by plaintiff against the three defendants trading as a firm, and the evidence showing beyond a doubt that there was no joint undertaking or liability by or on the part of such three defendants, and there never was such a firm, and that they never traded as such, there can be no recovery by plaintiff in this action.
    Answer. — The facts stated are for the jury. To entitle the plaintiff to recover there should be a settlement of the partnership affairs, and an express promise to pay the plaintiff’s claim on the part of the defendant.
    4. If the jury believe from the evidence in the case that there was no full settlement of the partnership between plaintiff and the defendants, his copartners, or that there was no balance struck as due from said three defendants to plaintiff then their verdict must be for the defendants.
    Answer. — We affirm the point.
    5. It the jury believe from the evidence that there was no express and distinct promise and undertaking by all three of said copartners to pay plaintiff an ascertained and fixed sum — then their verdict must be for the defendants.
    Answer. — We affirm this point.
    6. That if the jury believe from the evidence that plaintiff sold to Jacob S. Lawrence all his right, title and interest, claim and demand of, in, to and against the firm of Lawrence, Merkel & Company, and all the firm assets and firm property, then he can not recovér in this suit and the verdict must be for the defendants.
    Answer. — If the jury find the facts as stated then we affirm this point.
    7. That if the jury believe from the evidence that the partners Michael Merkel and Franklin C. Lawrence, settled with Jacob S. Lawrence for the Mangold interest after the sale to him according to the agreement, bill of sale and assignment from Mangold to said Jacob Lawrence, then plaintiff is estopped from recovering anything so settled and paid as against Michael Merkel and Franklin C. Lawrence, and there can be no recovery against them in this suit.
    Answer. — This is affirmed, if the plaiutiff did any act or thing to mislead the defendants by which they were induced to pay out more money to Jacob S. Lawrence than they would otherwise be legally required to pay, and only as to that amount.
    May 20, 1879, verdict for plaintiff for $555.72.
    Defendants then took a writ of error. The portions of the charge in brackets form the subject of errors three to five. The sixth error was in qualifying defendant’s first point. The seventh error was in not affirming defendant’s third point. The eighth error was in not giving'the jury binding instructions to find for defendants.
    
      D. A. Jones and F. W. Hughes, Esqs., for plaintiff in error argued:
    In the affidavit with the narr Mangold swore he was a member of the firm. He remained on the record seven years during which time the case was arbitrated. The amendment is “to be allowed only when there has been a mistake, not barely the assertion of one; Cochran vs. Arnold, 8 P. F. S., 402; Locke vs. Daugherty, 7 Wright, 89.
    After striking out the name of Mangold the Court should have allowed the defendants to withdraw the plea in bar and plead the non-joinder of Mangold in abatement: Dech vs. Haas, 2 Legal Gazette, 24.
    As to third error the Court mis-stated the fact saying that the note was by Lawrence and Merkel when in fact it was paid by J. S. Lawrence alone.
    As to fourth eri’or the Court should not have charged that the jury could find an express promise to pay from the acts of the parties as well as the testimony.
    As to fifth error if the partnership was dissolved the Court erred in saying J. S. Lawrence could bind the firm, Parsons on Contracts, 1 Vol., 169.
    As to seventh error the answer of the Court was not responsive.
    As to eighth error assumpsit will not lie unless there has been a settlement of accounts; Leidy vs. Messinger, 21 P. F. S., 177; Ferguson vs. Wright, 11 P. F. S., 258; Andrews vs. Allen, 9 S. & R., 241; Knerr vs. Hoffman, 15 P. F. S., 156; Ozeas vs. Johnson, 1 Binn, 191; Walker vs. Long, 2 P. A. Browne, 132; Killam vs. Preston, 4 W. & S., 14; Hall vs. Stewart, 2 Jones, 211.
    
      The.Act of April 14, 1838, P. Laws 691, does not empower an . individual to maintain an action against a firm of which he is one of the partners; Hall vs. Logan, 10 Casey, 331; McFadden vs. Hunt, 5 W. & S., 468; Miller vs. Knauff, 2 Clarke, 11; Capen vs. Barrows, 1 Gray, 379.
    Assumpsit will not lie for salary by a partner unless there has been a settlement of accounts; Fox’s Digest on Partnership, page 266; Hills vs. Barley, 27 Vermont, 548; Parsons on Partnership, 268, note c; Holmes vs. Higinson, 1 B. & C., 76; Drew vs. Ferson, 32 Wis., 654; Kennedy vs. McFadden, 2 Harr & G, 300.
    
      M. M. L'Velle, Esq., contra.
    
    The name of a party included by mistake may be stricken off; Rangler vs. Hummel, 1 Wright, 130; Jackson vs. Lloyd, 8 Wright, 82; Cochran vs. Arnold, 8 P. F. S., 399; Westcott vs. Edmunds, 18 P. F. S., 34.
    It is in the discretion of the Court to allow the defendant to withdraw a plea in bar and demur; Payran vs. McWilliams, 9 W. & S., 154.
    The Court did not err in allowing the jury to infer an express promise to pay from the acts of the parties and their testimony.
    
    An action of assumpsit will lie where there is an express promise to pay, even though there has been no settlement; Leidy vs. Messinger, 21 P. F. S., 177; Ozeas vs. Johnson, 4 Dallas, 434; Patton vs. Ash, 7 S. & R., 116; McFadden vs. Hunt, 5 W. & S., 468; Andrews vs. Allen, 9 S. & R., 241.
   The Supreme Court affirmed the ruling of the Court below on March 28, 1881, in the following opinion :

Per Curiam.

The amendment striking out the name of Mangold — one of the original defendants — was clearly within the power of the Court under the Act of April 12, 1858, P. Laws,'243. No harm was done to the remaining defendants by refusal of leave to withdraw the pleas in bar and plead in abatement. The very question which would have arisen under that plea, had issue been taken on it, was decided under the plea in bar. The liability of the remaining members of the firm to the plaintiff below was fairly submitted to the jury ; namely whether there was a settlement of the partnership affairs and a promise to pay on the part of the defendants. Judgment affirmed.  