
    HEATH ET AL. vs. HOWELL & JOHNSON.
    Eastern Dist.
    
      March, 1840.
    AFFEAL FROM THE COMMERCIAL COURT OF NEW-ORLEANS.
    The members of a firm doing business as carpenters, and signing the name of their firm to a note, are only liable jointly, and not jointly and severally.
    The defendants, doing business as carpenters, are sued on their promissory note, signed “ Howell & Johnson,” and judgment is prayed against them in solido.
    
    The defendants pleaded a general denial, averring that they carried on the business of carpenters.
    There was judgment, that the plaintiffs recover of Howell & Johnson the sum of five hundred dollars, &c. From this judgment they appealed.
    
      
      Randall, for the appellants,
    insisted, that the judgment was erroneous in condemning the defendants in solido, who, by their answer, show they carry on the business of carpenters; and there is no evidence to show they are bound in solido. J
    
    
      I. W. Smith, contra, prayed for the affirmance of the judgment, with ten per cent, damages.
   Morphy, J.,

delivered the opinion of the court.

The defendants, being sued on their note of hand, and sought to be made liable in solido, answer by a general denial, and describe themselves as carrying on the trade of carpenters. Judgment was given against them, and, after failing to obtain a new trial below, they have appealed.

The only point made by the appellants, which we deem it necessary to notice, is, that defendants should not have been condemned in solido. The judgment, it is true, does not contain the terms in solido, but it would probably be construed with reference to the pleadings, and the appellants, if not bound in that way, have a right to protect themselves against such a construction, by having the judgment properly amended. We find no evidence in the record that the defendants, who are carpenters, and have associated to carry on their trade together, have done any of those acts which would impart a commercial character to their partnership. They are liable, then, only jointly, and not jointly and severally. Louisiana Code, 2796, 2844.

It is, therefore, ordered and decreed, that the judgment of the court below be so amended as to render the defendants’ obligation to pay under it joint only, and not joint and several, as prayed for by plaintiffs, and that the costs of this appeal be borne by the latter.  