Ward v. Dow , 44 N.H. 45 ( 1860 )

Bartlett, J.

The declaration alleges a joint indebtedness of the three defendants to the plaintiff for goods sold and delivered; and proof that the defendants were in partnership in the transaction furnishes evidence of a joint indebtedness. 2 Saund. Pl. & Ev. 707. This would not create a variance, any more than proof in an action against one, of an indebtedness of the firm of which he is a member. Neally v. Moulton, 12 N. H. 485. It has been held that partners, when plaintiffs, need not describe themselves as such. Tarlton v. Herbert, 4 Ala. 359 (5 U. S. D. 490, 331); Wardell v. Pinney, 1 Wend. 217 ; see 2 Greenl. Ev., sec. 478. Many of the precedents of declarations by and against surviving partners contain no allegation of partnership. 1 Lill. Ent. 34 ; 2 Chit. Pl. 92, 94 ; Oliver Prec. 127, 128. In Pierce v. Lacy the question seems to have been merely of variance between the writ and declaration, arising upon a plea in abatement; and though it were to be held in such case that a declaration in the names of A and B merely creates a variance where the writ was in their names as partners, it by no means follows that proof of the indebtedness of the two, as partners, would not support an allegation of a joint debt. 1 Chit. Pl. 41, 42; Mack v. Spencer, 4 Wend. 411; Valette v. Parker, 6 Wend. 615. In Moore v. Stevens, 42 N. H. 404, the decision is only that an allegation in a plea to an avowry in replevin, that certain property belonged to the plaintiffs as joint owners, was a departure from the declaration which averred that they owned it in their pai-tnership capacity. Petrie v. Newell is not in point; for the question of the necessity of an allegation of partnership there, arose solely under sec. 8 of ch. 40 of the Illinois Revised Statutes, dispensing with the necessity of the proof of joint liability in certain cases. In that case the plaintiff offered no proof that several of the defendants, whose names did not appear upon the note, wrere in any way liable upon it; and his declaration had not brought his case within the provisions of the statute cited.

The plaintiff might contradict the defendants’ witnesses, by showing that they testified differently before the auditor; but‘except in this point of view it was immaterial what their testimony before the auditor was ; Seavey v. Dearborn, 19 N. H. 355 ; and the court properly restricted the inquiry to the relevant testimony. 2 C. & H. Notes to Phill. Ev. 760. There must be

Judgment on the verdict.