
    CHARLES SNYDER AND CARLOS D’ESTRADA, LATELY TRADING AS CHARLES SNYDER & CO., TO THE USE OF CHARLES D’ESTRADA, vs. FRANK H. FINLEY.
    At Law.
    No. 8787.
    I. On. the trial of an action, ex contraetu, if it be shown that all the parties to the contract have not joined in the action as plaintiffs, the defendant may take advantage of the omission either by plea in abatement or as ground of nonsuit at the trial.
    II. Where there is a conflict of testimony over the question whether all the parties to the contract have joined as plaintiffs in the action, it is proper to request the court to instruct the jury, if they believe from the evidence that a party to the contract has been omitted, then the plaintiff cannot recover. And it is no answer to such a request and instead thereof, for the court to instruct the jury that if they believe from the evidence the debt was due to plaintiff, they must find for the plaintiff.
    STATEMENT OE THE CASE.
    This was an action of assumpsit on a book-account. The declaration consisted of the common counts, with, bill of particulars annexed, claiming that defendant was indebted to plaintiffs in the sum of $156.60. The issue sought to be maintained by the defendant was, that one T. G. Korony ought to be made a party plaintiff, for the reason that he was one of the firm of Charles Snyder & Co. at the time he contracted the alleged indebtedness to that copartnership.
    On the trial of the cause the said Korony was examined as a witness, and testified that on the 10th or 12th of January, 1872, he was in Washington and received the order for the goods embraced in the account sued upon from defendant, upon C. Snyder & Co., and that he was a full partner in that firm, and that the individual members of the firm were himself, D’Estrada, and Snyder.
    Carlos D’Estrada testified as follows:
    “In the spring of 1872 I was dissatisfied, and Mr. Snyder and myself agreed to dissolve partnership. We published a notice of dissolution, in which T. G-. Korony’s name was mentioned, hut not as a partner. Mr. Korony then claimed to be a partner, and made application to court. The counsel for all the parties agreed, as a matter of compromise, that a new notice should be published, embracing Mr. Korony’s name as a partner; Mr. K., on his part, agreeing at once to assign to the firm, or to Mr. Snyder, all his right, title, and interest in the firm. ”
    And thereupon the defendant’s counsel prayed the court to instruct the jury that, if they found from the evidence that T. G-. Korony was a member of the firm from which the defendant ordered these goods, the plaintiffs cannot recover in this action; but the court held and instructed the jury that if they found that this debt was due to the plaintiffs, they must find for the plaintiffs; whereupon the counsel for the defendant made his exceptions to the refusal of the court to instruct the jury as prayed, and to the instructions of the court as given.
    The jury having found the issue for the plaintiffs, the defendants bring the cause to this court upon a bill of exceptions.
    --for the plaintiff.
    
      Bainbridge H. Webb, for defendant, contended that the court below erred—
    1. In refusing to give the instruction asked for by defendant’s counsel, to wit: That if the jury believe from the evidence that T. Gr. Korony was a member of the firm from which defendant ordered these goods, the plaintiffs cannot recover in this action.
    If the declaration contains too many defendants, or too few plaintiffs, it is a fatal defect. 1 Chitty Plead., 31; Arch. Plead, and Evid., 78; Peters C. C. K., 26, 27.
    2. The court erred in instructing the jury that if they believed from the evidence that this debt was due to plaintiffs, they must find for the plaintiffs.
    This instruction, if given at all, should have been with the qualification that the debt must have been due originally to plaintiffs.
    If the debt was due the plaintiffs as assignees (and the evidence tends strongly to show that fact) they could not sue for it in their own name.
   Mr. Justice Wylie

delivered the opinion of the court:

This was an action of assumpsit, in which the defendant pleaded the general issue.

At the trial the defendant gave evidence tending to show that one T. G. Korony was a member of the plaintiffs’ firm at the date of the contract. Plaintiffs gave evidence on the other side tending to show that said Korony was not a member of the firm at that time, but that Snyder and D’Estrada were the only persons who then composed that partnership. There was a conflict of testimony over that question.

Defendant’s counsel then ask the court to instruct the jury that if they found from the evidence that T. G-. Korony was a member of the firm from which the defendants ordered the goods, the plaintiffs cannot recover in this action.

To this prayer the court answered, and “instructed the jury that if they found that this debt was due to the plaintiffs they must find for the plaintiffs.” Defendants thereupon excepted to the instruction so given.

We think the instruction given was no answer to the prayer. The prayer presented a question of law, proper for the decision of the court. The answer of the court left the decision to the jury, which was error. For in actions ex contractu if it be shown at the trial that all the parties to the contract have not joined in the action of plaintiffs, the defendant may take advantage of the omission either by plea in abatement or as ground of nonsuit at the trial. 1 Chitty’s Pl., 13.

Judgment reversed and a new trial granted.  