Cookingham v. Lasher

2 Keyes 454

• Court: New York Court of Appeals
• Decided: March 15, 1866
• Status: Published

Opinion

Wright, J.

The sole point is whether the action is maintained against the defendant Lasher alone, or whether the plaintiff can only recover in a suit against Lasher and Deyo.

I am clearly of the opinion that the action wes properly brought against Lasher individually. He alone made the contract. The plaintiff was not informed, and did not know that Deyo had any interest in the horses. It was intended to be a contract between the plaintiff and Lasher only, and the warranty was made by Lasher personally. This the referee has found.

The defendant having made the contract in his own name and not in that of himself and copartner, he cannot turn the plaintiff over to a litigation with a stranger, simply because the latter had an interest in the property sold. He cannot evade his personal liability to the plaintiff, nor compel him to bring in another person to divide the responsibility with him, because the plaintiff contracted with him alone, and not with him as the agent of a copartnership of which he was one of the members.

The nonjoinder of a dormant partner as co-defendant, cannot even be pleaded in abatement, when the plaintiff has no means of knowing of the partnership. If, at the time of the contract, the creditor knows that his debtor has a dormant partner, he should regularly make the latter a co-defendant; but if he does not, and the nonjoinder is objected to, it will be left with the jury to say with what parties the contract was intended to be made. Oollyer on Partnership, § 719, and cases cited in the notice. In this case, as has been stated, the referee has expressly found that the contract of warranty was intended to be made between the plaintiff and the defendant.

The judgment should be affirmed.

All concur.

Judgment affirmed.

JOEL TIEPAhTT, State Reporter.