
    Richmond.
    Adams & Co. v. Powers, Blair & Co.
    December 2d, 1886.
    Practice at Common Law—Action against firm—Caseatbar.—Where ' action is against a firm, which the declaration avers to be composed of five named individuals, and at the trial the evidence is that the firm contracted the debt, but that at that time three of said individuals were not members of the firm, no judgment can be entered against said individuals as such firm.
    Error to judgment of circuit' court of city of Richmond, rendered November 21,1884; in an action of assumpsit wherein Powers, Blair & Co. are plaintiffs, and J. W. Crawford & Co. are defendants. Verdict and judgment were for $1,088.73, and interest, in favor of plaintiffs. Defendants being denied a new trial, had the evidence certified, and obtained a writ of error and supersedeas from one of the judges of this court.
    Opinion states the cáse.
    
      Meredith & Cocke, for the plaintiffs in error.
    
      Otho G. Kean, for the defendants in error.
   Lacy, J.,

delivered the opinion of the court.

This is an action of assumpsit by the defendant in error against J. W. Crawford, James M. Moore, Jesse E. Adams, and James N. Lampkin, partners doing business under the firm name and style of J. W. Crawford & Co. The said James Moore, Jesse E. Adams, and James N. Lampkin being partners under the firm name and style df Jesse E. Adams & Co., and having, as said firm, become members of the said firm of J. W. Crawford & Co.

The claim was admitted by J. W. Crawford & Co., but it was denied by Jesse E. Adam%& Co., that they constituted any part of the firm of J. W. Crawford & Co.

The verdict and judgment was for the plaintiff for the amount claimed by him in his declaration, and upon motion to set aside the verdict, the said motion was overruled and judgment entered upon the verdict. The evidence is certified, and the case is here upon a writ of error to the said judgment. By the evidence of the plaintiff, which must be taken as true here, it is proved that at the time the debt, which is the subject of this suit, was contracted by J. W. Crawford & Co., Jesse E. Adams & Co., were not partners in the concern of J. W. Crawford & Co., and never were. ^ About this there is no question. The plaintiff, Adolphus Blair, of the firm of Powers, Blair & Co., testifies: “ I know now that Adams & Co. was not a partner of Crawford & Co., but I thought the firm was a partner at the time.” The suit was against these parties as composing the firm of J. W. Crawford & Co., the verdict and judgment is against them as such. If the fact is that they were not partners in the concern of J. W. Crawford & Co., no judgment can be rendered against them as such, whatever may be their liabilities to the plaintiffs for their actings on their own account. The evidence establishes this fact. It .follows .that the verdict was against the evidence, and ought to have been set aside by the court.

The judgment must, therefore, be reversed and annulled, the verdict of the jury set aside as against the evidence, and the case remanded for a new trial to be had therein in the said circuit court of Richmond.

Judgment reversed.  