GERRET SCHIMMELPENNICK AND ADRIAN TOE LAER, TRADING UNDER THE FIRM OF R. AND J. R. VAN STAPHORST v. JOSIAH AND PHILIP TURNER.

Page 2 THIS case came before the court on a certificate of division from the circuit court of the United States for the district of Maryland.

In the circuit court, the plaintiffs, on the 29th of April 1825, sued out a writ of capias ad respondendum, in an action of assumpsit against 'Josiah Turner, and Philip Turner, surviving partners of William Turner, citizens of Maryland, merchants.'

The declaration in the case contained two counts: the first count charged the defendant for work, labour and services, for goods sold and delivered, and for money lent, paid and advanced in the following terms:

Josiah Turner, and Philip Turner, surviving partners of William Turner, citizens of Maryland, merchants, were attached to answer the plaintiffs, 'of a plea of trespass on the case, &c. and thereupon the said plaintiffs, by J. Glenn their attorney, complain: for that whereas the said defendants, merchants and co-partners, trading under the firm of Josiah Turner and Company, in the life time of the said William,' on the 1st day of March 1822, were indebted to the plaintiffs, &c.

The second count was on an alleged simul computassent; charging that 'the said defendants, afterwards, to wit on the day and year aforesaid, accounted with the said plaintiffs of and concerning divers other sums of money, before that time due and owing from the said defendants to the said plaintiffs, and then being in arrears and unpaid, &c.'

The defendants pleaded non assumpsit; and before the case came on for trial depositions of witnesses were taken in New York and in Holland, under commissions issued for the purpose; which showed that the ground of action was for advances made by the agent of the plaintiffs in September and October 1819, and in January 1820, on shipments of tobacco, the property of Josiah Turner and Philip Turner, consigned to the plaintiffs and by them sold for the account of the defendants. From these transactions a balance was by the accounts current of the plaintiffs claimed to be due to them; and the accounts current of the plaintiffs were by the testimony in the case shown to have been furnished to the defendants by the agent of the plaintiffs at different periods, and particularly in June 1822. No acknowledgement or admission of the correctness of the account was given in evidence.

The defendants, to maintain the issue on their part, gave in evidence to the jury, that William Turner, the person mentioned in the declaration, died on the 6th day of January 1819; that the said William was formerly a partner with the said Josiah and Philip, under the firm of Josiah Turner and Company, but that the said copartnership was dissolved in October 1817; and that a new copartnership was formed between the said Josiah and Philip in 1820, under the firm of Josiah Turner and Company.

Whereupon the defendants, by their counsel, prayed the opinion of the court and their direction to the jury, that the plaintiffs are not entitled to recover, because the defendants are sued as surviving partners of William Turner; whereas the proof is, that William Turner had departed this life some months before the first transaction took place between the plaintiffs and defendants, and therefore could not constitute one of the firm of the defendants at any time during the transactions in question; and that therefore there is a variance between the contract declared on, and the contract given in evidence; upon which prayer the opinions of the judges were opposed, and the same, on motion of the plaintiffs, by their counsel, was certified to the Supreme Court, agreeably to the act of congress.

The case was argued by Mr Stewart for the plaintiffs, and by Mr. N. Williams for the defendants.

For the plaintiffs it was contended, that the description of the defendants in the writ did not control the further proceedings, so as to make them erroneous if they did not conform to that description. 2 Black. Rep. 1 Bos. and Pull. 383. 3 Day's Rep. 472. The declaration properly recites the writ, but this does not make the writ a part of the declaration. The declaration shows the ground of claim, and can alone be considered as exhibiting it. 1 Chitty, 289. 2 W. Black. 848. 11 Fast, 62, 65. 1 W. Black. 250.

This declaration in this case fully sustains the claim of the plaintiff, if the words 'surviving partners' are rejected; and they should be as surplusage. This being done, it states no cause of action against William Turner, but against Josiah Turner and Philip Turner.

But if the words 'surviving partners' cannot be struck out, the objection of erroneous description does not apply to the last count in the declaration, as there they are not found. That count refers to the defendants in the suit, and those defendants were not William Turner, Josiah Turner, and Philip Turner, but the two latter only. 1 Harris and Gill's Rep. 234.

A plaintiff may recover in the same action against a defendant an individual debt, as also a debt due by him as a surviving partner. 5 Burr. 263. 5 T. R. 493. 1 Barn. and Ald. 29, 224. 2 Chitty's Plead. 436.

As to the alleged variance between the writ and the declaration, cited 2 Wheat. 45; 1 Harr. and Gill. 384. If the defendants assert a variance between the second count and the writ, that should have been made the subject of exception before plea. 12 Johns. 344.

The evidence on the record shows that the parties had accounted together. The accounts of the plaintiffs were delivered to the defendants, and no evidence that objections were made to them, until after three years, was offered. If the evidence upon this point was slight, yet it should not have been taken from the jury by the court: it was with the jury only to determine on its sufficiency.

Mr Williams, for the defendants, argued, that although an action against a surviving partner, charging him as an individual, upon a partnership debt, can be sustained, yet there is no case where, in a suit on an individual contract, the defendant can be charged as a surviving partner; each partner being liable individually for the debts of the partnership: but partners are not liable for individual debts.

The rule of law is, that contracts must be set forth in the declaration truly; and the slightest variance in substance will be fatal. Archb. Plead. and Ev. 122. 1 Durn. and East, 240. 2 Stark. Rep. 60. (3 S. and L. 244.) 1 Chitty's Plead. 304.

Another rule of pleading is, that if the declaration contains too many defendants, or two few plaintiff, it is a fatal defect. 1 Chitty's Plead. 31. Arch. Plead. and Evid. 78. 1 East, 52. Peters's C. C. R. 26, 27. Arch. Prac. 54.

The declaration in this case comes fully within both these rules. No evidence in the cause applied to transactions occurring before the death of William Turner; and all the dealing between the plaintiffs and Josiah and Philip Turner was subsequent to his decease.

The statement in the first count, by which the defendants are charged as surviving partners, cannot be changed by considering the words 'surviving partners' as surplusage. The contract alleged, is a contract with the firm of 'Josiah Turner and Company' in the lifetime of William Turner; and thus more parties are asserted to have made the assumpsit than those who are proved by the evidence to have been engaged in it.

The second count refers to the first; the plaintiffs count against the defendants, as 'the said defendants.' If the word 'said' refers to the writ or the first count, it has the same effect, and alleges a contract made by Josiah and Philip Turner as surviving partners. Cited, 1 Chitty's Plead. 233. Doug. 667. 1 Mason, 66. 1 Camp. 466.

Nor can the declaration be sustained, as if the defendants had been individually described. Cited, Arch. Plead. and Ev. 122. 1 Chitty's Plead. 31. 6 D. and E. 363. 2 John. Rep. 213. 1 Peters's Rep. 317. 12 John. 349. 2 Williams's Saund. Rep. 121. 4 Barn. and Ald. 374. Arch. Prac. 60. 2 Stark. 356. 1 S. and L. 208. 5 Cowen, 58.

Mr Justice THOMPSON delivered the opinion of the Court.