Wagner, Judge,
delivered the opinion of the court.
This was an action brought in the Greene county Circuit Court, by the respondents against the appellants. The petition is founded on two notes, and contains two counts. In the title to the cause, Jopes and Farmer are declared to be partners in trade, doing business under the firm name of W. H. Jopes. The first count then avers that defendants executed the note in their firm name, in payment for a bill of drugs and medicines bought by them of plaintiffs and used in their business. The second count is the same as the first, except that it is alleged, that the defendants executed the note sued on in their firm name of W. H. Jopes.
Jopes did not appear to the action. Farmer filed his answer denying the existence of the partnership under the name and style of W. H. Jopes, or under any other name or style, and averring that the notes sued on were the separate [42]*42and individual notes of the said Jopes, and executed for his sole use and benefit. A jury was empannelled to try the issue, and at the instance of the plaintiffs the court gave several instructions, the fifth and last of which is as follows :
“A dormant partner is liable, whenever found, for goods purchased and used for the benefit of the firm, and the accepting by plaintiffs of the notes sued upon in payment for a bill of drugs purchased by W. H. Jopes of them, and the acceptance of said note in payment therefor, if said drugs were used for the partnership benefit of W. H. Jopes and W. B. Farmer, may not be an acceptance of the liability of W. H. Jopes alone, or an exclusive credit to him, but was binding upon all for whom W. H. Jopes acted.” To the giving of all of said instructions the defendants at the time excepted.
Defendants then asked the court to give several instructions in their behalf, all of which were given except the first; and to the decision of the court in refusing to give said first instruction they also excepted.
The jury found a verdict for plaintiffs, and defendants made their motion in arrest of judgment and also a motion for a new trial, both of which motions were overruled by the court and defendants duly excepted, and Farmer now prosecutes his appeal in this court.
1. The instructions given for the plaintiffs below, respondents here, taken together, fairly presented the law to the jury; the first instruction asked by defendants, which the court refused, whilst enumerating a correct abstract principle of law, is not applicable to this case; the other instructions prayed for, and which were given, were of the most favorable character. The great mistake made in the line of argument pursued by the appellants’ counsel is not paying proper regard to the obvious distinction between partnerships, where all the members are open and notorious, and those where some are silent or dormant. Parties have a right to make their own contracts to assume extraordinary liabilities, or to take inferior securities when they might have [43]*43insisted on greater ones. When they are fully cognizant of all the facts, and a specific credit given, or a personal liability incurred, the law will not attempt to interfere and set up a new agreement for them, but will leave them to abide by their own engagement. The maxim modus et conventio vincunt legem then fitly applies.
The case of Sylvester v. Smith, 9 Mass. 115, merely decides that where an agreement was entered into between two persons, one to find the stock and the other to do the labor, and the profits were to be divided among them equally, an action might be maintained against the person buying the stock, notwithstanding the other person who was to perform the labor was not joined with him; Judge Parker saying, that, “ notwithstanding a co-partnership, either of the co-partners may undoubtedly contract on his own account, and make himself liable for merchandise bought for the co-partnership account, if the vendor chooses to accept him. In Loyd v. Freshfield, 2 Carr. & Payne, 825, Abbott, Ch. J.,held, that if money be lent to one partner on his individual credit, the fact that it is applied in discharge of the liabilities of the firm will not enable the lender to sue the firm for its repayment. In Le Roy v. Johnson, 2 Peters, 186, Hoffman and Johnson were co-partners in trade; a bill of exchange was drawn by Hoffman after the dissolution of his partnership with Johnson, and the proceeds of the bill went to pay and did pay the partnership debts of Hoffman and Johnson, which Hoffman on the dissolution of the firm had assumed to pay; it was decided by the court that the holder of the bill, after its dishonor, could have no claim on Johnson in consequence of the particular appropriation of the proceeds of the bill. It was admitted that if one partner contract with a third person in the name of the firm after the dissolution, but the fact of such dissolution not being made public or known to such third person, the law would consider the contract as being made with the firm and on their credit. But when the partner made an agreement or entered into a contract with another in his individual name, [44]*44and upon his sole personal responsibility, it was of no importance for the other to know that the partnership was dis solved; because he was dealing, not with the firm and upon their credit, but with the individual with whom he was acting, upon his own credit.
It will be perceived that in all the foregoing cases the partnerships were known ; their existence brought home to the knowledge of the parties dealing with them. They were placed in a situation to exercise their right of election, and were unquestionably bound by their own deliberate acts. They were not deprived of the right of choosing their debtors, and there is no hardship or injustice in holding them to their choice. But in the case of a dormant or secret partner, while the credit is manifestly given to the ostensible partner because, no other is known to the party, yet the credit is not deemed to be exclusive, the creditor having had no opportunity to elect or choose his debtor.
The credit will not, therefore, be presumed to have been given on the sole and separate responsibility of the ostensible partner, but will bind all for whom the partner acts, if done in their business and for their benefit. (Sto. on Part., § 138; 1 Sto. on Cont., § 226; Thompson v. Davenport, 9 Barn. & Co. 78; Bracken v. March, 4 Mo. 74; Raimond v. C. & E. Mills 2 Metc. 319 ; Bank v. Birney, 5 Mason, 176 ; Winship v. Bank U. S., 5 Pet. 529.)
2. The motion in arrest of judgment brings up the question of the legal sufficiency of the petition. It is contended by the appellants’ counsel that the petition is fatally defective, because there is no express averment that Farmer and Jopes were co-partners, and as such executed the notes by the name and style, &c., of W. H. Jopes. In the title the partnership is well set out, but in the body of the petition it is only charged that they made and executed the notes sued on in their firm name, and we have now to decide whether this defective and insufficient allegation is cured by verdict. The rule in reference to this subject is believed to be well settled, but the authorities differ in its application. [45]*45In Stephens v. Erampton, no partnership was alleged in the petition; the defendant answered denying the partnership and also the execution of the note; the court below having found for the plaintiff, this court affirmed the judgment, saying that the defendant was not aggrieved by the omission.
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Wagner, Judge,
delivered the opinion of the court.
This was an action brought in the Greene county Circuit Court, by the respondents against the appellants. The petition is founded on two notes, and contains two counts. In the title to the cause, Jopes and Farmer are declared to be partners in trade, doing business under the firm name of W. H. Jopes. The first count then avers that defendants executed the note in their firm name, in payment for a bill of drugs and medicines bought by them of plaintiffs and used in their business. The second count is the same as the first, except that it is alleged, that the defendants executed the note sued on in their firm name of W. H. Jopes.
Jopes did not appear to the action. Farmer filed his answer denying the existence of the partnership under the name and style of W. H. Jopes, or under any other name or style, and averring that the notes sued on were the separate [42]*42and individual notes of the said Jopes, and executed for his sole use and benefit. A jury was empannelled to try the issue, and at the instance of the plaintiffs the court gave several instructions, the fifth and last of which is as follows :
“A dormant partner is liable, whenever found, for goods purchased and used for the benefit of the firm, and the accepting by plaintiffs of the notes sued upon in payment for a bill of drugs purchased by W. H. Jopes of them, and the acceptance of said note in payment therefor, if said drugs were used for the partnership benefit of W. H. Jopes and W. B. Farmer, may not be an acceptance of the liability of W. H. Jopes alone, or an exclusive credit to him, but was binding upon all for whom W. H. Jopes acted.” To the giving of all of said instructions the defendants at the time excepted.
Defendants then asked the court to give several instructions in their behalf, all of which were given except the first; and to the decision of the court in refusing to give said first instruction they also excepted.
The jury found a verdict for plaintiffs, and defendants made their motion in arrest of judgment and also a motion for a new trial, both of which motions were overruled by the court and defendants duly excepted, and Farmer now prosecutes his appeal in this court.
1. The instructions given for the plaintiffs below, respondents here, taken together, fairly presented the law to the jury; the first instruction asked by defendants, which the court refused, whilst enumerating a correct abstract principle of law, is not applicable to this case; the other instructions prayed for, and which were given, were of the most favorable character. The great mistake made in the line of argument pursued by the appellants’ counsel is not paying proper regard to the obvious distinction between partnerships, where all the members are open and notorious, and those where some are silent or dormant. Parties have a right to make their own contracts to assume extraordinary liabilities, or to take inferior securities when they might have [43]*43insisted on greater ones. When they are fully cognizant of all the facts, and a specific credit given, or a personal liability incurred, the law will not attempt to interfere and set up a new agreement for them, but will leave them to abide by their own engagement. The maxim modus et conventio vincunt legem then fitly applies.
The case of Sylvester v. Smith, 9 Mass. 115, merely decides that where an agreement was entered into between two persons, one to find the stock and the other to do the labor, and the profits were to be divided among them equally, an action might be maintained against the person buying the stock, notwithstanding the other person who was to perform the labor was not joined with him; Judge Parker saying, that, “ notwithstanding a co-partnership, either of the co-partners may undoubtedly contract on his own account, and make himself liable for merchandise bought for the co-partnership account, if the vendor chooses to accept him. In Loyd v. Freshfield, 2 Carr. & Payne, 825, Abbott, Ch. J.,held, that if money be lent to one partner on his individual credit, the fact that it is applied in discharge of the liabilities of the firm will not enable the lender to sue the firm for its repayment. In Le Roy v. Johnson, 2 Peters, 186, Hoffman and Johnson were co-partners in trade; a bill of exchange was drawn by Hoffman after the dissolution of his partnership with Johnson, and the proceeds of the bill went to pay and did pay the partnership debts of Hoffman and Johnson, which Hoffman on the dissolution of the firm had assumed to pay; it was decided by the court that the holder of the bill, after its dishonor, could have no claim on Johnson in consequence of the particular appropriation of the proceeds of the bill. It was admitted that if one partner contract with a third person in the name of the firm after the dissolution, but the fact of such dissolution not being made public or known to such third person, the law would consider the contract as being made with the firm and on their credit. But when the partner made an agreement or entered into a contract with another in his individual name, [44]*44and upon his sole personal responsibility, it was of no importance for the other to know that the partnership was dis solved; because he was dealing, not with the firm and upon their credit, but with the individual with whom he was acting, upon his own credit.
It will be perceived that in all the foregoing cases the partnerships were known ; their existence brought home to the knowledge of the parties dealing with them. They were placed in a situation to exercise their right of election, and were unquestionably bound by their own deliberate acts. They were not deprived of the right of choosing their debtors, and there is no hardship or injustice in holding them to their choice. But in the case of a dormant or secret partner, while the credit is manifestly given to the ostensible partner because, no other is known to the party, yet the credit is not deemed to be exclusive, the creditor having had no opportunity to elect or choose his debtor.
The credit will not, therefore, be presumed to have been given on the sole and separate responsibility of the ostensible partner, but will bind all for whom the partner acts, if done in their business and for their benefit. (Sto. on Part., § 138; 1 Sto. on Cont., § 226; Thompson v. Davenport, 9 Barn. & Co. 78; Bracken v. March, 4 Mo. 74; Raimond v. C. & E. Mills 2 Metc. 319 ; Bank v. Birney, 5 Mason, 176 ; Winship v. Bank U. S., 5 Pet. 529.)
2. The motion in arrest of judgment brings up the question of the legal sufficiency of the petition. It is contended by the appellants’ counsel that the petition is fatally defective, because there is no express averment that Farmer and Jopes were co-partners, and as such executed the notes by the name and style, &c., of W. H. Jopes. In the title the partnership is well set out, but in the body of the petition it is only charged that they made and executed the notes sued on in their firm name, and we have now to decide whether this defective and insufficient allegation is cured by verdict. The rule in reference to this subject is believed to be well settled, but the authorities differ in its application. [45]*45In Stephens v. Erampton, no partnership was alleged in the petition; the defendant answered denying the partnership and also the execution of the note; the court below having found for the plaintiff, this court affirmed the judgment, saying that the defendant was not aggrieved by the omission. (29 Mo. 263.)
It is said in the court of King’s Bench: “Where matter is so essentially necessary to be proved, that, had it not been given in evidence, the jury could not have given such a verdict, then the want of stating that matter in express terms in a declaration, provided it contains terms sufficiently general to comprehend it in fair and reasonable intendment, will be cured by a verdict; and where a general allegation must, in fair construction, so far require to be restricted, that no judge and no jury could have properly treated it in an unrestrained sense, it may reasonably be presumed, after verdict, that it was so restrained at the trial.” And Mr. Sergeant Williams says: “ Where there is any defect, imperfection or omission in any pleading, whether in substance or form, which would have been a fatal objection upon demurrer, yet if the issue joined be such as necessarily required on the trial proof of the facts so defectively or imperfectly stated or omitted, and without which it is not to be presumed that either the judge would direct the jury to give, or the jury would have given the verdict, such defect, imperfection or omission is cured by the verdict.” And this rule has been well established and followed by our own adjudications. (Jackson v. Pesker, 1 M. & S. 234 ; 1 Saund. . 228, n. 1; Frost v. Pryor, 7 Mo. 314; Palmer v. Hunter, 8 Mo. 512; Shaler v. Van Wormer, 33 Mo. 386; Addington v. Allen, 11 Wend. 374; Grey v. James, 1 Pet. C. O. 476; Bayard v. Malcolm, 2 Johns. 550 ; 2 R. C. 1855, p. 1255, § 19.)
And now in the case here, though the petition was obviously defective, the whole matter was submitted to the jury under proper instructions from the court; without proof of partnership they could not have found their verdicts; they [46]*46were the rightful triers of the fact, and we do not feel disposed to disturb their findings.
3. The appellant, in his motion for a new trial, states that since the trial he had discovered new testimony materially affecting his rights, and tending to diminish the amount, which respondent ought to recover, several hundred dollars. In support of this motion, he made an affidavit stating in substance that at the time of the execution of the notes sued on, W. H. Jopes was indebted to respondents in the sum of $1,841.42, and that being so indebted he gave his notes for that sum, but by mistake at that time gave his other note for half that sum, to-wit, $920.72; that he was never advised of the mistake, and could not discover it by any possible diligence, and never discovered it till after the trial had ended. To further support this, Jopes, who was also called as a witness, made his affidavit corroborating the statement of the appellant Farmer, and alleging that he was totally ignorant of his being sued on two notes till he was called on the witness stand. Does this application disclose such facts as will entitle a party to a new trial ? Is the requisite diligence here exhibited ? The partners were joint defendants and sued as co-partners; they were regularly served with process ; they had ample time, and it was their business to consult together and advise each other of every thing that was necessary and essential in their defence.
When a person receives notice of trial, he is at once put on enquiry. The period of notice is always sufficiently ahead of the sitting of the court, to afford parties full opportunity to ascertain the precise situation of their cause, and what testimony they will require on their trial. And courts will not aid parties whore they have failed to take the requisite steps to procure their evidence, and more especially where they have been guilty of unpardonable neglect. Be: fore they ask the courts to help them, they must have evinced a disposition to help themselves.
To interpose in this case and grant a new trial, would be sotting a precedent that would unsettle well established prin[47]*47ciples, lead to great abuse and interminable litigation. If a hardship in this case is worked to the parties, it is justly imputable to their own laches.
We see no error in the court in overruling the motion. The judgment is affirmed.
The other judges concur.