
    Moses Goddard v. Henry S. Brown.
    When one of two parties contracts in his own name, declaring that the eon-tract is for his benefit, he cannot, in an action on book against him to recover on the contract, object'that the other partner is not joined.
    Action of book account. At the hearing before the auditor, the parties exhibited their accounts, and the defendant objected to the plaintiff’s charges, and contended that they should have been made against H. S. & J. Brown. It appeared that in the fall of 1833, the defendant and his brother, Jeduthan Brown, entered into partnership, which embraced their business in a store, saw mill and grist mill, farming, and the practice of the defendant, as a physician, which partnership had never been formally dissolved ;'T that in the spring of 1837, the defendant declared that he was going to manage the farm himself, that his brother would not have any thing to do with it ; that the defendant hired the plaintiff co work on the farm, without informing the plaintiff that Jeduthan had any thing to do with it; that Jeduthan worked occasionally on the farm with the plaintiff, and in the month of July, 1837, left home and had not since returned; the defendant’s account — so much of it as was charged on book — was charged on the company books of PI. S. & J. Brown, and the business done on the part of the defendant, as though the contract was made with, and the services performed for, H. S. & J. Brown, and on the part of the plaintiff, as though it was with the defendant alone.— The auditor adjusted the accounts as though the business was all done with the defendant, without reference to Jeduthan Brown, allowing the defendant’s account with the exception of one or two charges, and reported a balance in favor of the plaintiff. Most of the articles charged in the plaintiff ’s account were credited on the books of H. S. & J. Brown.
    It did not appear that the defendant had ever told the plaintiff that he carried on the farm alone. ° The services performed by the plaintiff were work done on the farm and driving the team of H. S. &. J. Brown, and for their benefit.
    The county court accepted the auditor’s report, and rendered judgment thereon for the plaintiff; to which the defendant excepted.
    
      R. R. Thrall and E. N. Briggs, for defendant.
    
      S. Foot and I. 8. Wright, for plaintiff.
   The opinion of the court was delivered by

Williams, Ch. J.

The exceptions to the auditor’s report and the judgment of the county court present this question alone, whether the account should have been charged to the defendant and Jeduthan Brown’ jointly, or to the defendant alone. It is only in this action that this question can be raised on trial of the merits. Non joinder of a defendant, in all other actions ex contractu, can only be objected by plea in abatement. In the action on book it is otherwise. Loomis v. Burrett, 4 Vt. R. 450. Before a plaintiff on this ground is turned over to another action, it should be made evident that the contract or dealings were 'with the two jointly, and not with one alone. One member of a partnership may contract separately, and make himself liable to a suit, notwithstanding others may be interested in the contract. — • In-the present case it is by no means certain that the partnership between the defendant and his brother did continue, so as to embrace the subject of the plaintiff’s account. Although not formally dissolved, it appears to have been in fact dissolved some time in the spring or former part of the summer of 1837. But whether it was dissolved or not, it appears very evident that the defendant contracted alone with the plaintiff. He declared that he was going to manage the farm alone, and employed the plaintiff, to labor, without informing him that he had a partner, and the auditor has, in effect, found that the contract was with the' defendant, and he cannot now'be permitted, on the trial of the merits, to object that another person was jointly liable with him, contrary to the declaration he made in the spring of 1837, about the time he employed the plaintiff. The judgment of the county court is, therefore, affirmed.  