
    COURT OF APPEALS.
    Francis Wigand, survivor, &c., respondent agt. Max Sichel and Solomon Sichel, appellants.
    A plea in abatement, that A. and B. were co-partners, and should have been co-defendants, is not sustained by evidence that B. was such partner. The defendant, by his plea, must give the party a better writ—he must state precisely and truly who were the parties to the contract; and if he fails to do this his plea fails also.
    A release executed between parties, and signed by a subscribing witness, cannot be introduced on a trial as evidence, unless proved by the subscribing witness. The law on this point remains unchanged.
    Where the plaintiffs waive the tort, and bring their action of assumpsit at once for the value of the goods sold on a credit, they do not avoid the contract of sale, by proving on the trial that the credit was obtained by the defendants by fraud, and that, therefore, the sale was one for cash.
    
      September Term, 1866.
    Appeal from a judgment against the defendants, rendered by the general term of the first judicial district.
    
      Appellants'’ point and case submitted.
    
    W. R. Staeeord, for respondent.
    
   Hunt, J.

This action was brought to recover the amount of a bill of goods sold by the plaintiff to the defendants, in the summer of 1858. The complaint, as amended, was the ordinary one for goods sold and delivered. The defendants pleaded a non-joinder of George Mann and Adolphus Knorr, as co-defendants; also that the goods had been purchased on a credit, which had not yet expired, and that they had given their promissory notes to the plaintiffs for the amount of the purchase. On the trial the plaintiff proved the sale and delivery of the goods on a credit of four months, for which the defendants gave their own promissory notes; the plaintiffs also proved that the credit was obtained upon representations grossly false and fraudulent; that they had in vain sought the defendants to offer a return of the notes before suit commenced; that the defendants fraudulently concealed themselves, ahd they produced and offered to cancel the notes on the trial. The plaintiffs recovered at the circuit, and the judgment in their favor was affirmed by the general term of the first district.

The appellants’ points present three grounds of objection, which I will consider in the order in which they are presented. It is claimed that an error was committed in excluding the proofs of certain articles of co-partnership, entered into on the 20th day of April, 1858, between Max Sichel, Solomon Sichel and George Mann. As a part of their answer, the defendants had pleaded that the supposed promises, in the complaint set forth, if any such were made, were made jointly with George Mann and Adolphus Knorr, and not by the defendants alone; and they prayed that the plaintiff’s action might abate, on account of the non-joinder of said Mann and Knorr. On the trial, the defendants offered in evidence the articles of co-partnership mentioned, to sustain this defense in abatement. It was excluded by the judge. A plea in abatement that Knorr and Mann were co-partners, and should have been co-defendants, was not. sustained by evidence that Mann was such partner. The defendant, by his plea, must give the party a better writ, that is, he must state precisely and truly, who were the parties to the contract; and if he fails to do this, his plea falls also. To sustain the plea, it must appear that there is neither a greater nor less number of parties than is set up in the plea. (Hanks agt. Murray, 2 Hill, 200.) The paper was not offered in connection with evidence to prove that Knorr wa,s also a partner, and, indeed, it was explicitly proven by Knorr, that he never had been a partner in the business. There was no error in this rilling, and this, independently of the question of the incompetency of written articles to prove the fact alleged.

The defendants afterwards offered in evidence a release, signed by Max Sichel and Adolphus Knorr, reciting a former partnership between them, and mutually releasing each from all claims in favor of the other. This paper was signed by John Herts, as a subscribing witness, and the plaintiff objected to its admission, unless proved by the subscribing witness. The law on this point remains unchanged, and the objection was undoubtedly valid. There was no error of the judge in excluding this paper. If admitted, the release could have had no possible effect. It did not recite a partnership of Knorr with Max Sichel and Solomon Sichel, but with Max Sichel alone. This could not have been in reference to the partnership sued, as to which it was admitted by the pleadings, that Solomon was a member. If it was intended that the paper should connect Knorr as a partner of the firm sued, it could have no such effect, and was quite immaterial.

. The last objection urged by the defendants, is upon the form of the action. The complaint, as amended, was in the ordinary form for goods sold and delivered, and a cause of action was proved, in the manner, and of the character, I have already stated. The defendants now object, that upon these pleadings, it was error to allow the plaintiffs to prove a fraud, for the purpose of avoiding the contract upon which they had counted.

It is settled by numerous authorities, that under the circumstances existing in this case, the plaintiffs were not bound to bring an action for the deceit, or an action of trover or replevin, but could waive the tort, and bring assumpsit at once for the value of the goods. (Roth agt. Palmer, 27 Barb. 652 ; Mason agt. Borest, 1 Denio, 69 ; Osborne agt. Bell, 5 Id. 370; Kingman agt. Hotailing, 25 Wend. 423.)

It is not accurate to say that the plaintiffs sought to avoid the contract of sale. It is the credit only, that is sought to be avoided. It was a sale of goods, which the plaintiffs by their action affirmed. It was, however, a sale, where the credit was obtained by fraud, and in law amounted to a sale for cash. In stating it in their complaint, therefore, to be a sale, and for cash, the plaintiffs but stated the contract according to its legal effect. They did not seek to avoid the contract of sale. They endeavored merely, by proof of the act of fraud, to reduce the transaction to a cash sale. The complaint and the proof were to the same purport.

The judgment should be affirmed.

All the judges concurred except Morgan, J.

Leonard, J., not voting.

Judgment affirmed.  