
    Patrick Keigher and another vs. Francis Dowlan and another.
    December 28, 1891.
    Action against Three as Partners — Judgment against Two. — Plaintiff sued three persons as joint defendants, alleging (as the fact was) that they were partners. He proved a cause of action against two of the defendants, but not against the third. Held, that judgment was properly rendered against the two. Gen. St. 1878, c. 66, § 266.
    Appeal by defendants Francis and James A. F. Dowlan (impleaded with John Dowlan) from an order of the district court for Bamsey «ounty, Otis, J., presiding, refusing a new trial after verdict of $850 •for plaintiff against them, and verdict in favor of defendant John Dowlan. The three defendants were partners as John Dowlan & Sons, and were sued as such on a contract alleged to have been made by all of them.
    
      G. D. á-Thos. D. O’Brien, for appellants.
    
      Munn, Boyesen á Thygesen, for respondents.
   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 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.  