
    Claflin and others v. Butterfly & Devin.
    When two persons are sued together, on a contract, which on its face is their joint contract, but which at all times was, in legal effect, the contract of only one of them, a judgment may be rendered against the latter, in favor of the plaintiff, and against the plaintiff, in favor of the other defendant.
    Under the Code, the plaintiff is not obliged, in an action against several, as joint-contractors, to establish the contract against all of them, in order to recover against any of them.
    (Before Oaklet, Cm J., Dder and Boswobth, J.J.)
    February, 1856.
    This action came before the General Term, on a verdict in favor of the plaintiffs against Devin only, subject to the opinion of the court, on questions of law. It was tried before Chief Justice Oakley and a jury, in October, 1855.
    The defendants were partners, doing business under the name of “ Butterly & Devin.” The action was brought against them as partners, upon a written guaranty, in the firm’s name, signed by Devin, to the effect that U. P. Fitzgerald should pay for all goods bought by him of the plaintiffs, from the 8th of March, 1853, •when payment was due, not exceeding in amount $300, the purchases to be on a credit of three months.
    
      The guaranty was signed by Devin, without the knowledge, or prior or subsequent assent of his partner, Butterly.
    The plaintiff having proved his case, except the execution of the guaranty with the assent of both defendants, rested.
    The counsel for the.defendants then moved to dismiss the complaint on the grounds—
    1st. That it appeared that the said writing, so far.as the defendants were connected therewith, was, if any, a joint liability.
    2d. That the same was given by the defendant Devin, without the privity or consent, express or implied, of the other defendant, and in a matter not connected with the transactions of Butterly & Devin.
    3d. And that the plaintiffs had not shown any connection between the said’ Butterly and the said writing.
    The said Judge, on the said motion, ordered the complaint dismissed as to the defendant Nicholas Butterly, and refused to dismiss the same as to John Devin; to which refusal the counsel for the defendants, then and there excepted.
    The counsel for the defendants offered to prove that the said Nicholas Butterly, the defendant, was not dead, but living in the city of New York, and that the said Nicholas Butterly was, at the time of the making of the said writing, the partner of the said Devin, and doing business in the city of New York, and in the name, style and firm of Butterly & Devin.
    And, thereupon, the said Judge rejected the evidence as irrelevant, to which opinion and decision the counsel for the defendants excepted.
    The counsel for the defendants then asked the said Judge to charge the jury—
    1st. That it appeared that the said writing, so far as the defendants were connected therewith, was, if any, a joint liability.
    2d. That the same was given by the defendant Devin without the privity or consent, express or implied, of the other defendant, and in a matter not connected with the transactions of Butterly & Devin.
    3d. And that the plaintiffs had not shown any connection between the said Butterly and the said writing.
    4th. That as no personal defence is made by Butterly, if the said writing is a joint liability, so far as the defendants are connected therewith, then the jury should render a verdict in favor of the defendants.
    The court refused so to charge; and charged the jury that the action could not be sustained against the defendant Butterly, but that when the action is brought against two, as in this case, and it turns out that only one was connected with it, the judgment may be against that one; and that their verdict in this case should be in favor of the plaintiffs against John Devin alone, for the amount claimed by the plaintiffs.
    To which opinion and charge the counsel for the defendants then and there excepted.
    The said issues were then submitted to the jury on the question of damages, and they found a verdict for the plaintiffs for three hundred and thirty-six dollars and seventy-five cents, subject to the opinion of the court at General Term, on the said questions of law so reserved at the trial.
    
      Wm. Allen Butler, for plaintiffs.
    
      Geo. Shea, for defendant Devin.
   By the Court. Bosworth, J.

This action is brought against the defendants, as partners. The pleadings and proofs show, that Devin, without the knowledge or assent of Butterly, signed the firm’s name to an instrument, guarantying to the plaintiffs, punctual payment, by Fitzgerald, for all goods they might sell him after March, 1853, the liability, under the guaranty, not to exceed $300 at any one time.

Butterly is conceded to be not liable. The only question is this: The plaintiffs having sued the defendants, as partners, on a contract purporting to be signed by the firm, and bearing the genuine signature of the firm, can he have judgment against one only, when it is clear that the other defendant is not liable?

Under the old system, it was well settled, that in an action against several, as partners, or joint contractors, if the evidence established that too many persons were made defendants, and that the contract was not obligatory upon all, as the joint contract of all, the plaintiff could not recover against any of the defendants, although the only persons liable, were, in fact, made defendants in the action. (1 Chitty on Pleadings, 50.)

Hi actions upon contracts, it was also necessary that all of several joint promisees, should he made plaintiffs. If there were too many or too few parties, the plaintiffs could not recover in that action. The consequence was, that for such a defect of either parties, plaintiffs or defendants, the plaintiffs were driven to a new action, and were subjected to the costs of all the defendants, in the first action.

The 274th section of the Code, provides that the judgment may be given for, or against, one or more of several plaintiffs, and for, or against, one or more, of several defendants.

This language is broad enough to admit of a judgment being recovered against one of two persons, sued as partners, and of a judgment being rendered, in the same action, against the plaintiffs, in favor of the other defendant.

The codifiers, in the note to this section, and which was reported with it to the legislature, referred to the rules, in actions at law, above stated, and suggested that this section was designed, among other purposes, to abrogate those rules, and allow a judgment to be taken, in favor of the plaintiffs shown to be entitled to recover, and against the defendants shown to be liable. The legislature passed the section, with this avowal of the intent with which it was drawn, well known to it. It is not unreasonable to infer, that they passed it to enable that intent to be realized.

In this case, although the contract, on its face, is the contract of a firm, and although all the members of the firm are prosecuted as being the parties who made it, yet the pleadings and proofs show that, in legal effect, it is the contract of one of the members of the firm only, and a recovery is had accordingly.

In Brumskill v. James, et al., (1 Ker. 294-301,) the action was on a note, made in the copartnership name of Eaglesum & Co., and was brought against James and Eliza Eaglesum, as being the persons composing the firm. James Eaglesum alone appeared and defended. It turned out that his partner was his wife. The Judge, at the circuit, was requested to charge the jury, that if they found, that at the time the notes were made, the defendants were husband and wife, they should render a verdict for the defendants. This the Judge refused to do, but charged that, “ where an action is brought against two persons, and it turns out that only one was ever liable, tire judgment may be against the one so liable.” To this charge, and to the refusal to charge as requested, exceptions were taken.

In speaking of these exceptions, the court say: the defendant “relies upon the misjoinder, and upon the general rule of the common law, that where a joint contract is the subject of the suit, the recovery must be against all the defendants or neither. This was the inconvenience the above provisions of the Code were designed to remedy, and no case is likely to be presented, in which their application would be more manifestly equitable and just, than the present.”

All the Judges, except Selden, J., concurred in that opinion.

In this action, it is enough to sustain the decision made at the trial, and .to entitle the plaintiff to a judgment on his verdict, to hold, that when two defendants are sued jointly, on a contract which, on its face, is the joint contract of both, but which, in legal effect, was, at all times, the contract of one only, a judgment may be rendered against the party liable, and in favor of the other. The defendant, in such -a case, might have been sued alone, and a recovery had against him, on a complaint stating the actual facts.

This rule has been applied by the Supreme Court, at General Term, when the same court held, that under § 274 of the Code, as construed by them, a recovery could not be had against one of several defendants alone, except when such a judgment could have been had against him if he had been sued alone. (Parker v. Jackson, 16 Barb. 33.)

The latter rule virtually concedes, that in all cases, where several are sued as joint contractors, a recovery may be had against the parties who made the contract, although it is not the joint contract of all. For had those who made it been sued alone, a recovery could have been had against them, as a matter of course. (Harrington, v. Bingham, 15 Barb. 524.)

The plaintiff is entitled to judgment, on the verdict against the defendant, Devin.  