
    Richmond.
    Wright v. Michie.
    1849. October Term.
    
    (Absent Cabell, P. and Brooke, J.)
    1. If a contract, though made concerning the partnership affairs, and in furtherance of the joint undertaking, is the individual contract of the partners who are parties to it, and if it is made by them in their own name, and not in the name of the firm, an action may be maintained thereon by one against the other, during the continuance of the partnership.
    2. On a general demurrer to a declaration, if any of the breaches are well assigned, the demurrer must be overruled, though other breaches are assigned, for which the action would not lie.
    3. The specification of error in the assignment of a particular breach ' in the declaration, does not convert a general demurrer to the declaration into a demurrer to the particular breach; and if there be other breaches assigned which will maintain the action the demurrer must be overruled.
    This was an action on the case in the Circuit court of Albemarle, instituted in April 1839, by James L. Wright, agaist David Michie. The declaration sets out a contract entered into in November 1836, between the parties, by which Michie in consideration of certain stipulations and services to be performed by the plaintiff, bargained and contracted with the plaintiff, among other things, that the plaintiff was to take charge of the defendant’s mill on Mychunck creek, on the 1st day of the next January, and forthwith to rebuild the saw mill, and to put up a grist and plaster mill at the most convenient place according to the plaintiff’s judgment ; and also to put in the mill house a wool carding machine and its usual fixtures; the said defendant agreeing to furnish all necessary timbers for said works ready gotten and delivered at the place, and also the carding machine, cards and all iron machinery necessary for said mills and carding machine; and also a pair of four feet European mill stones, and all shingles and nails necessary ; all of which were to be gotten according to a bill to be furnished to said Michie by the said Wright, and approved of by the said Michie, and delivered at the place as called for by the plaintiff. The plaintiff thereupon, and in consideration of said stipulations, bound himself to do all the other work necessary to put into operation the said works.
    And the defendant further agreed and undertook to build a dam on another stream near the one that the dam then standing was on, and to cut a canal from that dam so as to turn the water into the then existing canal at his own expense, but under the superintendence of the plaintiff; and during the time the plaintiff was engaged in doing said work and superintending that to be done by said Michie, the said defendant undertook and promised to pay to said plaintiff 1 dollar 50 cents per day, and to furnish him with board during the time. The defendant further undertook to have a certain house removed near the mill to answer for a kitchen, and that a convenient dwelling house should be put up by said Michie’s hands for the plaintiff. The defendant further agreed with the plaintiff to incur jointly with him the expenses of keeping up, repairing and operating with the necessary hands the said machinery, and further agreed to permit the plaintiff to move on the premises with his family as soon as the buildings were ready for his reception, and to remain there in superintendence and working of said machinery for ten years from the first day of the next January; the said plaintiff to keep an accurate account of the expenditures, and at the end of every year the nett profits to be equally divided between the plaintiff and defendant. And the said defendant bound himself to give to the plaintiff a garden spot sufficient for his purposes near his dwelling. And that the defendant further agreed with the plaintiff that in case of a disagreement the parties should refer the matter to the determination of two men to be selected by the parties themselves, or the umpire of such men, if necessary; and that they should abide the judgment of such men or umpire.
    And the plaintiff averred, that under the said contract he did enter and take possession of the premises mentioned; and although he had well and truly performed the services and duties to be performed on his part under the said contract in every respect, so far as he could perform the same without the concurrence and co-operation of the defendant, and was still ready and willing to perform the same, yet the defendant had failed and refused to comply with the said contract on his part, but had broken the same.
    The breaches assigned were, 1st. The failure to build the dam and cut the canal provided for in the contract. 2d. The failure to furnish the wool carding machine, the iron fixtures, nails and shingles. 3d. The failure to furnish the plaintiff with ground for a garden or to furnish him with a kitchen. 4th. The refusal to refer the matters in disagreement between them to arbitrators. And the damages were laid at 1000 dollars.
    The defendant demurred to the declaration, and stated as causes of demurrer, 1st. That all the breaches assigned pertained to a partnership transaction between the plaintiff and defendant, which had not expired or been dissolved, and which occurred since its commencement. 2d. Because one of the breaches assigned was that the defendant refused to submit to arbitration the matters in controversy, according to the terms of said contract, for which no action would lie.
    The plaintiff joined in the demurrer; and when the same came on to be heard, the Circuit court sustained the demurrer and rendered a judgment for the defendant, with costs. Whereupon Wright applied to this Court for a supersedeas, which was awarded.
    
      The Attorney General for the appellant, and Patton for the appellee, submitted the case.
   Daniel, J.

This action was brought to recover damages for the failure of the defendant in error in certain particulars, to observe and perform a contract contained in written articles of agreement, not under seal, between him and the plaintiff in error, made and entered into previous to the formation of a partnership in the profits of a milling business. The declaration alleges a performance, on the part of the plaintiff, of every thing which it was his duty to perform, so far as he could act without the concurrence and co-operation of the defendant, a readiness to proceed to the full execution of the agreement, and a failure to comply on the part of the defendant. Several breaches are assigned, and among them is the failure and refusal of the defendant to submit to an arbitration of the differences between the parties, as provided for in the articles of agreement.

The declaration contained but one count; and to this the defendant filed a general demurrer, and assigned as the grounds thereof, two causes of demurrer.

1st. “ Because all the breaches assigned pertain to a partnership transaction between the plaintiff and the defendant, which has not yet expired or been dissolved, and which occurred since its commencement.”

2d. Because one of the breaches assigned is, that the defendant refused to refer to arbitration the matters in controversy, according to the terms of said alleged contract, for which no action lies.”

It is true that one partner cannot maintain an action at law against the firm, nor can t,he firm maintain an action against one of its members, so long as the relation between the parties subsists. Nor can one partner maintain an action against the other partners of the concern upon a contract entered into between him and the firm. No one can he both plaintiff and defendant in the same action at law, nor can a suit be properly brought against certain individuals of a partnership, leaving out the others who compose it, upon a contract entered into with the firm.

But if a contract, though made concerning the partnership affairs, and in furtherance of the joint undertaking, is the individual contract of the partners who are parties to it; if it is made by them, in their own names and not in the name of the firm, the objection does not apply, Addison on Contracts 459.

Thus in the case of covenants and agreements between partners to contribute capital or labour to the joint stock of the copartnership, entered into by them in their own names with each other, each of the partners who neglects to fulfil his covenant is liable to an action at the suit of all the rest, for the joint damages sustained by them in respect thereof, inasmuch as the contract is the individual contract of the different parties who thereby agree to become partners. The covenant of each covenantor is, in contemplation of law, made with all the rest, excluding himself, and all the rest are joint tenants as against him; for if there be twenty partners, and one of them covenants with all the rest, he is, in that respect, several from them all, and they all joint against him. Ibid.

The articles upon which this suit is brought was entered into between the plaintiff and defendant as individuals, and though the breaches assigned are in respect of undertakings on the part of the defendant, from the due execution and performance of which, were, in part to arise, the anticipated profits in which the parties were to share as equal partners, the fact that the partnership still subsisted at the date of the writ presented no bar to the action.

The question sought to be presented, by the second cause assigned as ground of demurrer, does not arise. The demurrer is a general demurrer. It goes to the whole count, and an objection which, if sustained, would not vitiate the whole count, cannot be thus made. The assignment of a special cause as ground of demurrer does not narrow the scope of the demurrer. The demurrer should have been to the particular breach, which, in the second assignment of causes, it is alleged was faulty. As the count contained, independent of the breach objected to, matter sufficient to sustain the action, the issue on the general demurrer ought to have been decided in favour of the plaintiff. Henderson v. Stringer, supra 130.

I am of opinion that the demurrer ought to have been overruled instead of being sustained by the Circuit court j and that the judgment of said court sustaining the demurrer and dismissing the plaintiff’s action should be reversed, with costs, and the cause remanded for further proceedings.

The other Judges concurred in the opinion of Daniel, J.

Judgment reversed.  