
    TELLERS against MUIR.
    EEEOE EEOM BOBOUGH COUBT 01 ELIZABETH.
    In assumpsit against partners on note by one of them, the partnership or j oint contract must be proved.
    The action below was an action of assumpsit, brought by Muir against William Teller, Peter W. Teller, and Samuel Teller, trading under the firm of Peter W. Teller & Co., on a promissory note, alleged to be made by the defendants, in the name of the firm. At the trial, the plaintiff, Muir, offered in evidence a note, which he proved to be in the handwriting of Peter W. Teller, signed by Peter W. Teller & Co. The counsel for the defendants objected to reading the note in evidence, alleging that no evidence had been given of the existence of the partnership, which he contended was necessary, to make out a joint cause of action, and to show the authority of Peter W. Teller to execute a note in the name of the other defendants. The court below overruled the objection; whereupon the note was read in evidence, on which the plaintiff rested his cause. The defendant’s counsel moved for a nonsuit, on the ground that no joint contract had been proved; but the court refused to nonsuit, and the jury found a verdict for the plaintiff for the amount of the note. [*] The matter being brought up by bills of exception, and assigned for error, '
    
      I. H. Williamson, for the plaintiffs in error,
    contended,
    1st. That the note could not be read in evidence until the partnership was proved.
    2d. That no joint contract had been proved, and therefore the court below ought to have nonsuited the plaintiff.
    
      Chetwood, contra.
    The action was against the firm, and
    the note proved to have been executed by one of the firm; it was evidence so far, and proper to go to the [549] jury; that if they failed in making out evidence of a joint contract, by proving the partnership, the court below might, at their discretion, nonsuit the plaintiff, but this could not be assigned for error; that one of the justices of this court, in another case, had expressed that opinion.
   Pennington, J.

I have certainly delivered such an opinion; but I understand my brethren have doubted the correctness of it.

Chetwood. It has been so decided in the court of the United States.

By the Court.

There is enough on the bills of exception to show that the plaintiff below gave no evidence of a joint contract, and ought not to have prevailed.

Pennington, J.

Went on the ground that the court

below ought not to have permitted the note to have been read in evidence until some evidence had been given of the existence of the partnership.

Judgment reversed by the whole court.  