Mode v. . Penland

We think the court ought to have received the evidence offered and rejected.

If it be granted that the evidence disclosed the existence of a partnership, as suggested by the court, nevertheless the defendant might be liable to the plaintiff for the negligence or tortious conduct of his partner acting in the course of the business of the partnership. Partners, as such, like individuals, are responsible for the negligence of their servants and agents in respect of the business of the agency, upon the maxim qui facit per alium, facit per se, and when one of the partners does acts in the course of the business he is considered and treated in such respect as the agent of the partnership and the other partners. In such cases the partners are all liable, even although the act complained of may not be assented to by all of them. Hence, in Moreton v. Hordern, 4 Barn. Cres., 223, which was an action brought against three defendants, proprietors of a stagecoach, where the declaration stated that the defendants so carelessly managed their coach and horses that the coach ran against the plaintiff and broke his leg, and it appeared in evidence that one of the defendants was driving at the time when the accident happened, and the jury found that it happened through his negligent driving, the Court held that the plaintiff might maintain case against all the partners, although he might perhaps have been entitled to bring trespass against the partner who drove the coach.

Although the partners are all liable in such cases and may be sued, it does not follow that all of them must be sued. The law treats all torts as several, as well as joint, and the party injured may, at (295) his election, sue all the partners, or any one or more of them, for the injury done him. This rule of law is not peculiar to partnership, it extends to all cases of joint torts and trespasses at the common law, whether positive or constructive. Story on Part., secs. 166 and 167; Collyer on Part., secs. 457, 460, and 727.

So that the plaintiff, if he suffered the injury complained of, could maintain his action against the defendant alone, or against him and his partners, and the court ought to have received the evidence.

It may be that the court rejected the evidence because there was a variance between it and the allegations in the complaint. If so, still the evidence should have been received, because the variance was not such as misled the defendant to his prejudice in making his defense. The substance of the material allegations of the complaint was that the defendant, by the negligence of his agent in the course of the business of his agency, injured the plaintiff. The evidence tended to show that the agent was not exactly such as alleged, but it went to prove that he was such agent in substance and effect, although he may have been the defendant's partner. And if it was material in some degree, it was such as the court ought to have aided, as generally it had authority to do. The Code, sec. 269, provides that "no variance between the allegations in the pleading shall be deemed material unless it has actually misled the adverse party to his prejudice in maintaining his action upon the merits. Whenever it shall be alleged that a party has been so misled, that fact shall be proved to the satisfaction of the court, and in what respect he has been misled; and thereupon the judge may order the pleading to be amended upon such terms as shall be just." And sec. 270 further provides that "where the variance is not material as provided in the preceding section, the judge may direct the fact to be found according to the evidence, or may order an immediate amendment without costs."

The evidence offered was material. If it had been received (296) the slight variance, if at all material, might have been cured as directed by the statute above cited. Its very purpose is to cure defects such as are presented by this case.

There is error. The judgment of nonsuit must be set aside and further proceeding had in the action according to law. To that end let this opinion be certified to the Superior Court.

Error. Reversed.