
    William Wildrick, Respondent, v. William Heyshem, Appellant.
    
      Contract by a partnership — when damages for its breach cannot be recovered in,an action against one partner — allegation of a defect of a party defendant, how far
    
    In an action brought to recover damages for a breach of contract, the defendant alleged that the contract, if made, was not made by or with himself alone, but with himself and his brother who were copartners, and that his brother was still living and should have been made a party defendant.
    Upon the trial the defendant offered evidence tending to prove the existence of the partnership, and that the contract, if made, was a copartnership contract. The court excluded the evidence offered on the theory that ,the answer attempted to set up merely a non-joinder of the defendant’s brother, and that the pleading was insufficient because it failed to allege that the brother was within the jurisdiction of the court so that service of the summons in the action could be made upon him.
    
      Held, that it was improper to exclude the evidence;
    That the defendant was not obliged to plead non-joinder of a party defendant in order to have the benefit of his allegation that the liability sought to be enforced was not individual, but a copartnership! one, and that, therefore, the action could not be maintained against him in the form in which it was brought;
    That if the liability was a pártnership liability the action should have been brought against all of the members of the copartnership regardless of whether all of the defendants could be actually served with process or not. ‘
    
    Appeal by the defendant, William Heyshem, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the- county of Steuben on the 3d day of February, 1903, upon the verdict of a jury, and also from an order entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes.
    
      James O. Sebring, for the appellant.
    
      D. M. Darrin, for the respondent.
   Williams, J.:

The judgment and order should be reversed and a new trial granted, with costs to appellant to abide event.

The action was to recover damages for' breach of contract to deliver cattle, alleged to have been sold by defendant to plaintiff. The total purchase price was $465. The verdict rendered by the jury was for-$100. The questions presented upon this appeal are of law and not of fact. So far as the facts were submitted to the jury we see ho reason for interfering with their determination thereof.

The defendant, however, alleged that the contract, if made, was not by or with himself alone, but with himself and his brother, who wére copartners, and as such owners of the cattle in question, and that his. brother, who was still living, should have been made a party defendant with him in the action.. Upon the trial the defendant offered to prove that plaintiff made no contract with the defendant alone; if he made a contract it was with the defendant and his brother as copartners. This offer was objected .to by plaintiff as immaterial and incompetent under the pleadings, and the objections were sustained. Several questions were thereupon asked by the defendant with a view to proving the partnership, and' that the contract was a copartnership one, all of which were objected to on the same grounds and the objections sustained. The theory upon which these rulings were ma’de was that the answer attempted. merely to set up a non-joinder of the brother, the partner of defendant, as a party to the action, and that the pleading was insufficient because it failed to allege that the brother was within the jurisdiction of the court so that service could be made upon him of the summons in the action. Assuming this rule of pleading to he correct, the difficulty is that, regardless of this question of .pleading non-joinder of parties, the answer alleged, and the defendant offered to prove, a complete defense to the action, to wit, that no contract was made by or with the defendant alone, but the contract, if made at' all, was with the copartnership, which was the owner of the cattle. If this was true, then the liability was a copartnership and not an individual liability, and no action could be maintained against the defendant individually thereon. It would have to be brought against the members of the copartnership, regardless of whether all the defendants could be actually served with process or not. Defendant had a legal right to have the judgment in such form that copartnership property would be appropriated to its payment before his individual property could be taken. [New York Fastener Co. v. Wilatus, 65 App. Div. 467; Sparks v. Fogarty, 93 App. Div. 472; 87 N. Y. Supp. 648.)

It was not necessary for the defendant to-plead non-joinder of a party defendant in order to have the benefit of his allegation that the liability was not an individual, but a copartnership one, and, therefore, could not be maintained in the form in which it was brought against him individually. The court should have admitted the evidence offered as to copartnership and left it to the jury to pass upon the question under instructions that no recovery could be had if the contract was a copartnership one, and not defendant’s individual contract.

The judgment and order should be reversed and a new trial granted, with costs to appellant to abide event, upon questions of law only, the facts having been examined and no error found therein.

All concurred.

Judgment and order reversed and new trial ordered, with costs to the appellant to abide event, upon questions of law only, the facts having been examined and no error found therein.  