[109]*109The opinion of the court was delivered by
Davis, J.
The only question, which arises in this case, is, whether, upon the facts disclosed in the auditor’s report, showing a copart-nership between the defendant and his son Franklin H. Stone, in respect to the dealings with the plaintiff -which constitute the ground of his claim, the county court erred in rendering a judgment for the plaintiff. The auditor reports the facts very fully, and comes to the conclusion, that F. H. Stone should have been joined in the suit. The county court were of opinion, that the fact, that another was jointly liable with the defendant, interposed no obstacle to a recovery against the latter alone.
It seems, that the point now relied upon was first raised before the auditor; judgment to account was given without objection, and the matter was referred to an auditor to take and report the account. Ordinarily, in matters of contract, if a part, only, of those liable are sued, unless the objection appear upon the plaintiff’s own statement of his case, the latter is entitled to judgment; because each and every partner is liable for the whole debt. So far as those dealing with the firm are concerned, it is not a matter of any consequence, who, among those responsible, discharge the claims, or from what fund they are paid, — whether from the joint property of the firm, or the separate property of some one of the members. This is to be adjusted subsequently among themselves, prior to or on a dissolution. It is, nevertheless, a formal irregularity to proceed against a part only, and, as such, may be insisted bn by plea in abatement, at the earliest opportunity ; if not so done, the objection is waived. In our action of book account, from its peculiar character, this mode of proceeding is impracticable. The preliminary judgment to account is always rendered without reference to the actual dealings between the parties, or whether any have ever existed, or not.
As a necessary consequence of these principles, no inquiry can be had as to the number of parties liable, until the hearing before the auditor. Phelps, J., in Loomis v. Barrett, 4 Vt. 450. It is now well settled, that it may be made there and without formal pleadings. The objection there has no longer the character of a plea in abatement, but assumes that of a substantial defence to the action. This is doubtless a hardship upon the plaintiff; as much expense may [110]*110have been incurred in the preparation for trial upon the merits of the claim, all of which may be rendered nugatory, by having this formal objection suddenly sprung upon them, without notice, or preparation. Such, however, is the settled practice.
Although the report shows, that another person was jointly liable with the defendant on this account, yet that circumstance is not conclusive of the question. The articles, two kegs of oysters, were sent from St. Albans, where the plaintiff resides, to East Berkshire, where the defendant and his son kept a tavern, by Mr. Ladd, a stage driver, the plaintiff charging them to the defendant, supposing he alone sent for them, and ignorant that any other person had any interest in the tavern. They were delivered to the defendant, though Franklin II. Stone had requested the driver to get them ; and they were used for the benefit of the firm. The partnership was open and notorious in the vicinity, under the style of J. C. Stone & Son.
It seems to be settled in England, by numerous decisions, that, in such cases, the question is, to whom in fact was the credit given, and with whom had the plaintiff reason to suppose he was dealing; if with the party sued alone, then the plaintiff cannot be defeated, by proving that other parties were also liable. Baldney et al. v. Richie, 1 Stark. R. 338. In that case the defendant gave an order, in his own name, for a quantity of copper for two vessels, owned by him and others; making no mention of his partners; and, in ordering the delivery of some old copper to the plaintiffs, he spoke of it as the copper of his ship, the Harmony. These ships were duly registered in the names of all the owners, and, on application and proper inquiry, their names could have been ascertained. A plea in abatement was filed, upon which an issue of fact was formed. Lord Ellenborough left it to the jury, to find with whom the contract was made, — observing that if the defendant meant that others should have been holden, he ought to have given some intimation to the plaintiff, that others were interested. A similar course was adopted in Mullett v. Hook, I Mood & Malk. 88; where the plaintiff had knowledge, that the defendant had partners. To the same effect is the case of DeMantort v. Saunders, 1 B. & Ad. 398; which, like that of Baldney v. Richie, was upon a plea in abatement, disclosing other parties, who ought to have been joined. Ld. Tenterden left it to the jury,, to say whether the plaintiff might [111]*111not reasonably suppose, from the circumstances, that the bill drawn by Saunders, Brothers & Co. was drawn by the defendants alone, notwithstanding the words and Co. might seem to indicate that there were others in the firm. The court of King’s Bench held this ruling to be right. This undoubtedly overrules the case of Dubois v. Ludert, 1 Marshall 246, where it was held, that a secret partnership might be- pleaded in abatement, though the plaintiff had no knowledge of it. See also the case of Doe v. Chippenham, cited in Abbot on Ship. 97 ; which supports the general doctrine. In Stansfield v. Levy, 3 Stark. 8, it was held, that a plea in abatement was not supported by evidence of a secret partnership, unknown to the plaintiff, the defendant having ordered the goods in his own name. The case of Murray v. Somerville, 2 Camp. 39, n., is to the same purport.
These cases are'quite sufficient, to show, that, when all the partners are not known to the plaintiff, or when one of the members makes the contract in his own name, and credit is, upon reasonable grounds, given to one, he alone may be pursued ; and the fact, that others were associated with him, is not even sufficient to sustain a plea in abatement.' A similar doctrine has been fully sanctioned by this court, in Cleveland v. Woodward, 15 Vt. 302. The action, as here, was on book, and the objection arose, upon the hearing before the auditor, to a part of the plaintiff’s charges, which were for work on a farm owned by the defendant and another in company ; but the hiring was by the defendant, and the plaintiff was ignorant of the partnership.
It is a familiar principle, well established, that it is not necessary, though it is allowable, to proceed against a dormant partner, — even if known. If the parties can keep some members of the firm out of sight, though, as among themselves, enjoying all the advantages of an open partner, those dealing with them can do the same, holding those alone responsible, who assume to act for the whole. If the partnership be open and notorious, yet not actually known in a particular transaction, — especially if one of the members, by act, or word, give reason to suppose he alone is interested, — the case is a proper one for the application of a similar rule as in dormant part’ nerships.
[112]
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[109]*109The opinion of the court was delivered by
Davis, J.
The only question, which arises in this case, is, whether, upon the facts disclosed in the auditor’s report, showing a copart-nership between the defendant and his son Franklin H. Stone, in respect to the dealings with the plaintiff -which constitute the ground of his claim, the county court erred in rendering a judgment for the plaintiff. The auditor reports the facts very fully, and comes to the conclusion, that F. H. Stone should have been joined in the suit. The county court were of opinion, that the fact, that another was jointly liable with the defendant, interposed no obstacle to a recovery against the latter alone.
It seems, that the point now relied upon was first raised before the auditor; judgment to account was given without objection, and the matter was referred to an auditor to take and report the account. Ordinarily, in matters of contract, if a part, only, of those liable are sued, unless the objection appear upon the plaintiff’s own statement of his case, the latter is entitled to judgment; because each and every partner is liable for the whole debt. So far as those dealing with the firm are concerned, it is not a matter of any consequence, who, among those responsible, discharge the claims, or from what fund they are paid, — whether from the joint property of the firm, or the separate property of some one of the members. This is to be adjusted subsequently among themselves, prior to or on a dissolution. It is, nevertheless, a formal irregularity to proceed against a part only, and, as such, may be insisted bn by plea in abatement, at the earliest opportunity ; if not so done, the objection is waived. In our action of book account, from its peculiar character, this mode of proceeding is impracticable. The preliminary judgment to account is always rendered without reference to the actual dealings between the parties, or whether any have ever existed, or not.
As a necessary consequence of these principles, no inquiry can be had as to the number of parties liable, until the hearing before the auditor. Phelps, J., in Loomis v. Barrett, 4 Vt. 450. It is now well settled, that it may be made there and without formal pleadings. The objection there has no longer the character of a plea in abatement, but assumes that of a substantial defence to the action. This is doubtless a hardship upon the plaintiff; as much expense may [110]*110have been incurred in the preparation for trial upon the merits of the claim, all of which may be rendered nugatory, by having this formal objection suddenly sprung upon them, without notice, or preparation. Such, however, is the settled practice.
Although the report shows, that another person was jointly liable with the defendant on this account, yet that circumstance is not conclusive of the question. The articles, two kegs of oysters, were sent from St. Albans, where the plaintiff resides, to East Berkshire, where the defendant and his son kept a tavern, by Mr. Ladd, a stage driver, the plaintiff charging them to the defendant, supposing he alone sent for them, and ignorant that any other person had any interest in the tavern. They were delivered to the defendant, though Franklin II. Stone had requested the driver to get them ; and they were used for the benefit of the firm. The partnership was open and notorious in the vicinity, under the style of J. C. Stone & Son.
It seems to be settled in England, by numerous decisions, that, in such cases, the question is, to whom in fact was the credit given, and with whom had the plaintiff reason to suppose he was dealing; if with the party sued alone, then the plaintiff cannot be defeated, by proving that other parties were also liable. Baldney et al. v. Richie, 1 Stark. R. 338. In that case the defendant gave an order, in his own name, for a quantity of copper for two vessels, owned by him and others; making no mention of his partners; and, in ordering the delivery of some old copper to the plaintiffs, he spoke of it as the copper of his ship, the Harmony. These ships were duly registered in the names of all the owners, and, on application and proper inquiry, their names could have been ascertained. A plea in abatement was filed, upon which an issue of fact was formed. Lord Ellenborough left it to the jury, to find with whom the contract was made, — observing that if the defendant meant that others should have been holden, he ought to have given some intimation to the plaintiff, that others were interested. A similar course was adopted in Mullett v. Hook, I Mood & Malk. 88; where the plaintiff had knowledge, that the defendant had partners. To the same effect is the case of DeMantort v. Saunders, 1 B. & Ad. 398; which, like that of Baldney v. Richie, was upon a plea in abatement, disclosing other parties, who ought to have been joined. Ld. Tenterden left it to the jury,, to say whether the plaintiff might [111]*111not reasonably suppose, from the circumstances, that the bill drawn by Saunders, Brothers & Co. was drawn by the defendants alone, notwithstanding the words and Co. might seem to indicate that there were others in the firm. The court of King’s Bench held this ruling to be right. This undoubtedly overrules the case of Dubois v. Ludert, 1 Marshall 246, where it was held, that a secret partnership might be- pleaded in abatement, though the plaintiff had no knowledge of it. See also the case of Doe v. Chippenham, cited in Abbot on Ship. 97 ; which supports the general doctrine. In Stansfield v. Levy, 3 Stark. 8, it was held, that a plea in abatement was not supported by evidence of a secret partnership, unknown to the plaintiff, the defendant having ordered the goods in his own name. The case of Murray v. Somerville, 2 Camp. 39, n., is to the same purport.
These cases are'quite sufficient, to show, that, when all the partners are not known to the plaintiff, or when one of the members makes the contract in his own name, and credit is, upon reasonable grounds, given to one, he alone may be pursued ; and the fact, that others were associated with him, is not even sufficient to sustain a plea in abatement.' A similar doctrine has been fully sanctioned by this court, in Cleveland v. Woodward, 15 Vt. 302. The action, as here, was on book, and the objection arose, upon the hearing before the auditor, to a part of the plaintiff’s charges, which were for work on a farm owned by the defendant and another in company ; but the hiring was by the defendant, and the plaintiff was ignorant of the partnership.
It is a familiar principle, well established, that it is not necessary, though it is allowable, to proceed against a dormant partner, — even if known. If the parties can keep some members of the firm out of sight, though, as among themselves, enjoying all the advantages of an open partner, those dealing with them can do the same, holding those alone responsible, who assume to act for the whole. If the partnership be open and notorious, yet not actually known in a particular transaction, — especially if one of the members, by act, or word, give reason to suppose he alone is interested, — the case is a proper one for the application of a similar rule as in dormant part’ nerships.
[112]*112The report expressly finds, that credit was given alone to the defendant, who was confessedly a partner, and who generally had the charge and management of the tavern, while his son and partner had the control of the purchases and out door business. The facts, that other traders and business men in St. Albans sold articles for the use of the tavern and charged them to the defendant, which were paid for by him, without remark or objection, — that goods, purchased in Boston, Troy, &c., for their joint benefit, were often forwarded to the defendant alone, and' the transportation charged and settled for as if his alone, — that, about two years before these oysters were delivered, while the same partnership existed, this plaintiff sold a small bill of goods for their joint use, which were charged to the defendant and paid for by his son, and a regular bill and receipt given, running to the defendant, — all furnish sufficient grounds, when connected with the plaintiff’s ignorance of any partnership, for him to suppose he was dealing alone with the defendant. It is no satisfactory answer to this, to say, that by inquiry at Berkshire, or even of the stage driver, he might have ascertained the facts, as they existed.
The distinction, under which the defendant’s counsel seek to obviate the general rule of law, is unsubstantial. It may be generally, but is far from being universally, true, that credit is given to the person who actually orders the goods. Other circumstances frequently determine that point. Mere order and delivery are no more conclusive of purchase, than actual custody is of ownership. The first bill of goods was called for and taken by Franklin, and paid for by him; and yet credit was given to the father. In the present case, neither partner in person, or by written order, applied for the articles; and though Franklin requested the stage driver to get them, and he delivered them to the defendant, yet neither of these circumstances appears to have been know to the plaintiff, and if known, would rather have neutralized each other.
The judgment of the county court is affirmed.