
    Thomas Downing, survivor, &c., v. Lorenzo Mann, and others.
    In an action against two or more defendants, upon a contract made by or on behalf of a firm or association; if one of the defendants makes default, and others appear and deny their liability, it is sufficient on the trial for the plaintiff to prove that the contract was made by the firm or association, and that the defendants who appear were members thereof, and it is not necessary to prove that the defaulting defendant was also a member.
    Where two or more persons are declared against upon a joint contract, ajudgment cannot be obtained against one, upon proving a several liability on his part alone; and if, after verdict, under such circumstances, the court, under § 113 of the Code, can correct the error by striking out the name of the party who appears to have been improperly joined, and conforming the allegations to the facts established, the power should be exercised upon such terms as would certainly protect the rights of the defendant, and if the slightest reason exists to suspect that the verdict was obtained by unfair means—although the evidence in this respect be not such as would warrant setting it aside for that cause alone —an award of a new trial should be the condition of allowing the amendment.
    Under the present system of practice in this state, several promissors can be proceeded against in one action, and a joint judgment recovered. It seems, therefore, that, where the defendants are declared against as joint promissors, and the evidence shows that the promise was not made jointly, but by each defendant separately, the variance between the pleading and proof would be disregarded or cured by allowing an amendment, where their liabilities, as between themselves, would not be altered by this form of recovery against them.
    A motion by a defendant for a new trial, is not properly a renewal of a motion for a nonsuit.
    The right to move for a nonsuit never exists after verdict, except when leave is expressly reserved, on the trial, to renew such motion, without being prejudiced by the verdict.
    Giving leave, at the trial, to move for a nonsuit notwithstanding any verdict that may be rendered, is not unusual in England, and instances of this practice have occurred in this state; although taking a verdict subject to the opinion of the court upon the law is here more common.
    Where a person expressly allowed the use of his name, as a member of a committee of arrangements for a ball to be given by an association, and subscribed to some of the preliminary expenses, but took no further part, and did not attend the ball; it was held, that he was not liable for the cost of a supper provided for the occasion without his knowledge or consent.
    This suit was "brought against the members of a political association, to recover the cost of a supper furnished at a hall. One of the defendants, J. Martin, suffered judgment by default. Another, Levy, answered separately. The remainder put in a joint defence.
    The cause was tried by a jury, who found a verdict for the plaintiff. On the trial, a motion was made for a nonsuit, on the ground, principally, that the plaintiff could not recover without distinctly proving a joint liability on the part of the defaulting defendant, and that the evidence offered for the purpose was insufficient. The motion for a nonsuit was denied by Daly, J., who presided at the trial; hut the objection was afterwards sustained by him, at special term, and an order granted for a new trial. From this order the plaintiff appealed. The case is stated in the opinion of the court.
    
      Addison S. Diossy, for the plaintiff.
    I. The motion for a nonsuit was properly denied. 1. Formerly if a plaintiff sued one of several joint debtors, and he omitted to plead the non-joinder of the others (his co-debtors) in abatement, the plaintiff could not be nonsuited on the trial; but if a plaintiff sued several as joint debtors, he was bound to prove a joint contract by all, or be nonsuited. (Gay v. Carey, 9 Cow. 44; 1 Smith Lead’g Cases, Phi. Ed. Cas., 480 [287.]) 2. The reason for these decisions, was the doctrine of variance; that reason has been removed by the Code. (Mountstiphen v. Brook, 1 B. and Ad. 255; Code, §§ 169, 170, 171). 3. A defect of parties should be taken advantage of by demurrer or answer, or the objection on that account is waived. (Code, § 144, sub. 4, and §§ 147, 148; King v. Vanderbilt, 7 P. R. 385; Gardner v. Clark, 3 ib. 449; People v. Banker, 8 ib. 258; Bailey v. Easterly, 7 ib. 495.) 4. The Code expressly provides, that the plaintiff may take a several judgment in this case, and section 274 has no application. (Code, § 136, sub. 3; People v. Cram, 8 Prac. R. 151.)
    II. Upon the whole case justice has been done, and the defendants are not entitled to a new trial. (Hunt v. Fish, 4 Barb. S. C. R. 324; Vallance v. King, 3 ib. 548; De Peyster v. Wheeler, 1 Sand. S. C. R. 719; Bemis v. Bronson, 1 Code R. 27; Fort v. Goding, 9 Barb. S. C. R. 371; Corning v. Corning, 1 Code, R. N. S. 351; Carter v. Hope, 10 Barb. S. C. R. 180; Fay v. Grimstead, 10 ib. 321; McCormack v. Pickering, 4 Comstock, 276; Lubar v. Koplin, 4 Comstock, 549; Fleming v. Hollenbeck, 7 Barb. 271.)
    III. The court may order an amendment to correct any error. (Code, § 173; Dutcher v. Slack, 3 P. R. 322; Brown v. Babcock, 3 ib. 305; Davis v. Schermerhorn, 5 ib. 440; Burnap v. Halloran, 1 Code R. 51; Beardsley v. Storer, 7 Prac. R. 294; Palmer v. Beale, 9 Dowl. 529; Saund. Pl., ed. of 1851, p. 179 [180]; Mann v. Brooks, 7 P. R. 449; Burharn's v. Tibbets, 7 ib. 21; Foster v. Caldwell, 18 Vermont R. 180; Diblin v. Murphy, 3 Sand. S. C. R. 19.)
    
      Henry Morrison, for the defendant Levy, made and argued points, of which the following is an abstract:
    I. In an action against several defendants as joint and not several contractors, the plaintiff must prove that all the defendants are bound by the contract. The law in this respect remains unchanged by the Code. (1 Chitty’s Pleadings, vol. 1, p. 31; 1 Lev., 66; Sherill v. Wilkes, and others, 1 East. 52; Porter v. Harris, 1 Lev. 63; Buller’s N. P. 129; Saunders’ Plead’gs and Ev. vol. 1, 146; 2 Campbell, 308; 12 East. 94; 12 ib. 454; Mechanics' and Farmers' Bank v. Ryder, 5 Howard’s Special Term, R. 401; Murray v. Gifford, 5 Pract. R. 14; Fullerton v. Taylor, and others, 6 Howard’s Special T. R. 259.)
    H. The misjoinder of the defendants who are not liable to the plaintiff in this action is not waived by omitting to take the objection by answer or demurrer. The objection is, that the' complaint does not state facts sufficient to constitute a cause of action The answer of the defendants does deny that they jointly contracted with the other defendants with the plaintiff for the supper. The testimony of the witness Duryee proves all the defendants did not enter into the contract with the plaintiff.
    III. Section 136, subdivision 3 of the Code, does not assist the plaintiff in this action; the plaintiff not being entitled to judgment against the defendants or any of them individually:
    IY. The evident pei’jury by one of the plaintiff’s principal witnesses is a militating element against the justice of the whole case, and the plaintiff cannot ask that his verdict shall be sustained on the ground that “on the whole case justice has been done.”
    Y. The court cannot allow an amendment. The defendants, who are not shown liable to the plaintiff, were precluded from being witnesses for their co-defendants by being joined with them; they could not be called, because if they gave testimony which would have released their co-defendants, they would also have been discharged themselves. (Code, § 397; 6 How. 259.)
    YI. The question to one of the witnesses, whether hy Levy’s direction he communicated to the committee the unwillingness of the latter to act as a member of the committee, should have been allowed.
    YH. The only ground upon which the defendant John J. Levy’s liability to the plaintiff' can be maintained are the three following: 1. That his name was upon the circular. 2. That he came down to Downing after the contract was signed, and said he was on the ■ committee. 3. That he told Downing that if there should be any deficiency, he would pay it.- 1st. He cannot be made liable by reason of his name being on the committee, for it appears that it was put there without his knowledge or authority. 2d. Nor by saying he was one of the committee, for that was after the contract was made and signed. He was not on the committee at the time the contract was signed, nor at any other time. If he was not bound at the time the contract was signed, no subsequent act of his could bind him, not even if he had put his name on the committee. 3d. If he was not bound by the original contract, then his promise to pay the deficiency was a promise to pay the debt of third parties, and was within the statute of frauds.
    VIII. The law of estoppel does not militate against the defendant Levy. Downing made the contract, through the witness Duryee, solely with the parties, who, as a committee, were bound to him. Downing was not influenced by Levy to furnish the suppers. (Welland Canal Co. v. Hathaway, 8 Wend. 480; Jerell v. Odell, 3 Hill, 225; Hearne v. Rogers, 9 B. and C. 577; 6 Pick. 455; 4 Barbour S. C. R. 495; 5 ib. 375; Ryer v. Farewell, 9 ib. 615; Griffith v. Beecher, 10 ib. 432.)
    
      Joseph T. Mills, for the other defendants who appeared.
   By the Court. Woodruff, J.

In this case, the jury have found that the defendants jointly undertook to pay the plaintiff for the supper provided by him for the “ Morgan & Webb Association,” or that they authorized or sanctioned a contract on their behalf to that effect. A motion for a nonsuit was made on the trial, and as no special ground was assigned, it must be deemed to have been urged upon the general objection that the plaintiff had not made out a prima facie case. The motion being denied, the jury, under a charge which seems to have been satisfactory to all parties (and which we must therefore assume contained all proper directions respecting the law governing the liability of the defendants as joint contractors), have found that the defendants did jointly contract with the plaintiff.

The defendants moved for a new trial, and it is from the order granting a new trial that the plaintiff appeals.

The motion for a new trial is not properly a renewal of the motion for a nonsuit. The right to move for a nonsuit never exists after verdict, except when leave is expressly reserved, on the trial, to renew the motion without being prejudiced by the verdict Giving leave at the trial to move for a nonsuit, notwithstanding any verdict which may be rendered, is not unusual in the English practice, and it has sometimes been done in this state. Taking a verdict subject to the opinion of the court upon the law is here a more common pactice, but where the proceedings are of an adverse character throughout, and the question is one of fact, the verdict of the jury on the facts disposes of the motion for a nonsuit, as such, and there being no violation of any rule of law, the only question remaining is this, Is the verdict so far against the weight of the evidence, or so entirely unsupported by evidence, that it ought to be set aside by the court upon that ground ? The counsel for the defendants raise one question in regard to the admissibility of evidence but, with that exception, the single inquiry is, Have the jury found that the defendants are joint contractors, upon evidence wholly insufficient to charge them as such under the rules of law which apply to that subject ?

It appears by the evidence of G. W. Duryee that he obtained the names of a number of persons as a committee of arrangements for getting up a ball, and issued a circular under the name of “The Morgan & Webb Association,” containing the names not merely of the committee of arrangements, but of the assumed members of the association. The names of all of the defendants were upon that circular, and all were placed there by their express permission except that of the defendant Levy.

With this circular the witness Duryee went to the plaintiff, and for and on behalf of “The Morgan & Webb Association” contracted for the supper, and gave him the circular containing the names of the associates. So far, nothing appeared to charge the defendant Levy; but evidence was further given by the plaintiff that after the order for the supper was given, on being shown the circular with his name thereon as one of the association, and also the agreement made by Duryee on behalf of the rest, he distinctly affirmed the contract, and directed the plaintiff to go on and get up the supper, etc.

There was in what transpired at the trial some, and it seems to me great, reason to doubt the evidence of such affirmance, but the jury were the proper judges of the credibility of the witnesses, and as to Levy, there can be no doubt the verdict should stand, if no rule of law w;as violated to his prejudice. It is argued that as this affirmance by Levy was after the contract was made by Duryee, it is to be regarded as a separate promise and not a promise made jointly with the other defendants. '

If this argument were well founded, I should hesitate long before I set aside a verdict, otherwise correct, on the ground that the two or more promissors promised severally and not jointly, where their liability as among themselves was not altered by the form of the recovery, especially under a system where several promissors can be proceeded against in one action and a joint judgment recovered as well as where they promise jointly.

Under such a system of practice and pleading, that objection would rest simply on the ground of variance, and such a vari-, anee might be either disregarded or amended.

But there is no just foundation for the argument that Duryee had put Levy’s name on the circular without having seen him, but “ by permission of Baker and Contant.” It is important to know whether (although Duryee had not seen him) they did not direct it with his assent; and when the plaintiff showed him the circular and the agreement, he expressly sanctioned the use that had been made of his name and affirmed the agreement. It is not true that he (Levy) made a new agreement; he made no separate agreement, under the statute of frauds or otherwise, to pay or to be liable for the debt of other persons. The jury (if they believed the plaintiff’s witnesses) were warranted in finding, by just inference from what Levy said to the plaintiff, that Baker and Oontant had authority from him to put his name on the circular and that he sanctioned it, and also that he recognized the act of Duryee in ordering the supper as within the scope of his authority.

So far, then, as the defendant Levy is concerned, the verdict was not so against evidence or without evidence that we can disturb it on that ground.

As respects the other defendants, except Martin, the case stands thus: They had associated for the purpose of giving a ball; a committee of arrangements on their behalf order a supper, a common though not a universal accompaniment of such a ball. The ball was held, the supper furnished, and the defendants attended in pursuance of the original design. The manner in which Duryee testifies the affair was gotten up shows, I think, that the details were left to his discretion. He obtained their assent to act as a committee of arrangements to get up a ball for pleasure and “ do the things usual for a ball;” and they attended, and by their presence and concurrence approved what he had done, or at least placed themselves in a situation that the jury might reasonably infer their sanction.

The defendant Levy, however, insists that the judge on the trial erred in excluding evidence that Levy expressed to the committee his unwillingness to act as a member of the committee.

There was in this no error. What he may have said to the committee could not affect the plaintiff after what had passed between him and Levy, and if the communication was before his interview with the plaintiff, then it could not affect his liability, because he then sanctioned the use which had been made of his name.

But there is another reason why the ruling was correct. It was not claimed, nor had the plaintiff given any evidence that Levy was on the committee. Duryee says distinctly that he was not. The agreement was not made by Duryee on behalf of the committee only, but “ The Morgan & Webb Association,” whose names appeared on the circular left by him with the plaintiff, and among them that of Levy. It was therefore quite immaterial whether Levy was a committee-man or not, or whether he refused to act as a member of the committee or not. The question before the jury was whether the evidence showed that Levy was a member of the association in whose name the supper was ordered and whose names appeared upon the circular.

I have deemed it proper to review the case as exhibited upon the trial as against the defendants who appeared and defended, in this respect following the course pursued by counsel on the argument, for the purpose of seeing whether any of the defendants other than Martin, who suffered judgment by default, have any grounds upon the merits or upon the law governing their respective liability to the plaintiff, to ask a new trial; and my conclusion is that they have none, that although circumstances transpired at the trial warranting a suspicion that perjury was committed by one of the plaintiff’s witnesses, and some apprehension of misconduct on the part of the defendants, yet there is no ground upon which we can properly interfere with this verdict, unless it be upon what is, as to them, a purely technical objection, viz. that Martin ought not to have been made a defendant. This objection is strenuously insisted upon by the counsel for the defendant, Levy, and it Would seem to have been deemed an important, if not the decisive reason at the special term for granting a new trial.

The objection is stated thus: Although the defendant, Martin, suffered a default, the plaintiff was nevertheless bound to prove not only that Levy and the other defendants became bound to the plaintiff for the supper in question, but that they became bound jointly with Martin therefor, and therefore, that the plaintiff, having failed to prove on the trial that Martin became jointly with them responsible for the supper, must fail in ,his action although he may have shown to the satisfaction of the jury that all of the defendants who appeared and defended are liable.

In respect to the proof of Martin’s liability, I am inclined to concur with the opinion of the judge by whom the order appealed from was made, viz. that it was not sufficient; and yet not entirely without hesitation. He subscribed to the expense of printing circulars preparatory to getting up the ball, and lent his name as a member of the committee to the defendant Duryee, who acted for the others in the matter. These acts carry with them a presumption that he designed to authorize the use of his name for the purposes of the ball.

Nevertheless, as Martin is not shown to have done anything more, nor to have known what was done by the others, nor by attendance or otherwise to have sanctioned it, he could not, I think, if his liability depended upon the proofs given on the trial, be held liable for the supper of which he is not shown to have had any knowledge. But by. his default he has admitted his own liability, and it is conceded that he asks no relief. It is his co-defendants that now object to being included with him in the judgments.

Conceding the correctness of the principle, that the plaintiffs, notwithstanding the default of Martin, were bound to show a joint liability as against the defendants who did appear, I cannot forbear the observation that we have made small advance in the promotion of simple and speedy justice, by dispensing with technicalities and' aiming at the substantial merits of a controversy, if we are compelled to send these parties back to another long and expensive trial to correct this error.

Notwithstanding this suggestion, I have no doubt of the correctness of the rule, and if when rightly understood and applied to this it appears that the plaintiff failed to establish such joint liability, the order must be affirmed and a new trial be had.

It may be true that the 173d section of the Code gives the court power to correct the error by striking out the name of the party who appears to have been improperly joined and conforming the allegations to the facts proved in this respect, and that this would not conflict with cases cited to show that under § 274 there cannot be judgment for a plaintiff against one of two defendants alleged to be jointly liable, because an allowance of an amendment would obviate that very difficulty; but such a power should be exercised with great caution, and for reasons forcibly stated by Justice Allen, in Fullerton v. Taylor, 6 How. P. R. 261, it should, if at all, be exercised upon such terms as would certainly and abundantly protect the rights of the defendants, and if there is the slightest reason to suspect that the verdict was obtained by any unfair means (although the evidence on that subject be not such as would warrant our setting it aside for that cause), we would make a new trial the condition upon which an amendment was "allowed.

But I apprehend that it is an entire mistake to suppose that the rule referred to reaches this case. I concede that when a plaintiff declares against two or more defendants upon a joint contract, and one of them denies such joint contract, the plaintiff must establish such joint contract or fail, and although the other defendant makes default, and so admits his own liability upon the contract as alleged, the plaintiff must, nevertheless, as against the defendant who appears, prove that he is a party to the joint contract. But this is the whole extent of the rule, and this is all that can be inferred from the cases to which we are referred. (See Elliot v. Morgan, 7 Carr. and Payne, 334; Robertson v. Ganderton, et al. 9 ib. 476.)

It is not enough for the plaintiff to show on the trial a several "contract by the defendant who appears. This would be a variance from the plaintiff’s declaration or complaint.

• But where the contract is made by or" on the behalf of a firm or an association, and the liability of the firm or association is proved, it is enough for the plaintiff to show that the persons who appear and defend are members of such firm or association, and so are jointly liable with the other defendants whose membership is admitted. The joint contract is made out by such proof so far as the defendants who appear are concerned.

Upon such proof the case as against the defendants who appear stands thus: an association or firm are liable for the debt. The defaulting defendants are members and jointly liable, by their own admission, with all others who are shown to be members.

The plaintiff proves, as against the defendants who appear, that they also are members, and if so, that they are jointly liable.

The case of Halliday v. McDougall, 22 Wend. 264, shows the true limitation of the rule above referred to, viz. that although if one of two defendants makes default it will not be sufficient for the plaintiff to prove on the trial a several liability of the defendant who appears, yet it is enough for the plaintiff, assuming that the defaulting defendant is according to his own admission jointly liable, to show that the other defendants are jointly liable with him. It was, therefore, held in that case that, in an action against three defendants sought to be charged as partners, where only one is brought into court, and the others are returned not found, it is sufficient to entitle the plaintiff to recover, that he show that the defendant brought in is a member of the firm upon whose contract the action is founded, and it is not necessary in such case to prove that the other defendants were members of the firm.

Where some of the defendants, though served, admit by their default their joint liability, the case is still stronger, and so the rule is stated in this latter case by the chancellor in his opinion, and see the cases therein cited.

This view of the subject seems to me conclusive on this appeal. The defendánt Levy is liable if at all as a member of the Morgan and Webb Association,” and the jury have found him liable as such member. That association was liable for the supper in question, and as to the defendants appearing, it was, as settled in the case last cited, enough to show their membership without proving that Martin, who by his default had admitted the fact as far as he was concerned, was also a member with them.

If there is anything in the pleadings in the case which renders this view of the subject inappropriate, they not having been made a part of the case herein, nor submitted to the court on the argument, I am not able to discover it, and I assume that, if. there was, counsel would have brought it to our notice.

My conclusion is, that the order appealed from must he reversed, and a new trial be denied with costs.

Ingraham, First J., concurred.

Order allowing a new trial reversed.  