Barry v. Foyles

ERROR to the Circuit Court for the county of Washington.

In the Circuit Court for the county of Washington, the defendant in error issued an attachment against Robert Barry, the plaintiff in error; and according to the established practice, the plaintiff in the attachment, filed, at the time it was issued, an account or statement of his claim; by which he alleged that Robert Barry, the defendant below, was indebted to him in the sum of $3,410 25, for debts due from the firm of James D. Barry & Co. assumed by him to pay to the plaintiff in the attachment. This account or statement, was accompanied by an affidavit, that 'it was just and true, is it stands stated.' The plaintiff in error appeared and gave special bail; and a declaration was then filed, in indebitatus assumpsit, &c., and the plea of the general issue entered.

On the trial of the cause, the plaintiff offered in evidence to sustain his case, three paper writings, signed by E. Rice, which are stated, in extenso, in the opinion of the Court.

In order to prove the defendant chargeable with the amount delivered by the plaintiff below, Thomas Rice was produced and sworn as a witness; who testified, as set forth in the opinion of the Court.

The counsel for the defendant below objected to the evidence, and the objection being overruled, the case was brought by writ of error to this Court.

Messrs. Coxe and Worthington, for the plaintiffs in error, contended.

1st. That the evidence is not competent and sufficient to charge the plaintiff in error, upon his alledged assumpsit.

2nd. That under the declaration of indebitatus assumpsit, the evidence is also incompetent and insufficient.

By the statement filed upon oath, the claim of the plaintiff is averred to be a debt due by James D. Barry, & Co., which the defendant below assumed to pay.

The evidence on the part of the plaintiff below did not show such a firm as James D. Barry, & Co.; nor did the same prove an implied, much less an express assumpsit by Robert Barry.

The plaintiff below complied with the law of Maryland, by stating his cause of action, when the attachment was issued; and the defendant appeared and entered a plea thereto. Subsequently, he filed a declaration of indebitatus assumpsit, which was irregular. This cannot be done, and therefore the evidence applied only to the first declaration; which stated an assumption of the debt of James D. Barry, & Co., and no proof was offered of such assumption. The evidence does not show any connexion between Rice and the defendant, nor any authority from Robert Barry, by which his acts or acknowledgments could become binding on him; the plaintiffs did not therefore make out the case spread upon the record by the first declaration.

The papers signed by Rice were improperly admitted. No. 1. is given in the name of James D. Barry. The other two refer to transactions in which the defendant is not named.

2. Upon a general declaration in assumpsit, the issue is not maintained by proof of a partnership debt.

The general rule, that the defendant, who is charged separately for a joint debt, should plead this in abatement, does not apply, when the plaintiff has by his pleadings given no notice of the nature of his demand, until the time of trial, Jordan vs. Wilkins, 3 ''Wash. Decis.'' 112. In the case of Rice vs. Shout, 5 Burr, 2611, Lord Mansfield adverts strongly to the circumstance, that the defendant was the person with whom the business was transacted. Also cited Abbott vs. Smith, 2 Black. 947.

3. The agency of Rice was a special agency, and his acknowledgments were not evidence. He might have made entries in the books to charge his principal, but no more. 1 Esp. Rep. 375. 2 ''Stark. Evid.'' 60. Nor does his testimony prove the interest or partnership of Robert Barry, in the dealings to which the papers have reference. 3 ''Stark. Evid.'' p. 4. 1067.

Mr. Jones for the defendant.

The objections to the proceedings, as they apply to the first and second declarations, have no force. The account filed, when the writ issued, against Robert Barry alone, states his assumption of the partnership debt; and if this was objectionable, it should have been pleaded in abatement.

It was at one time supposed, that in all cases of attachment a second declaration should be filed; but this was afterwards considered as not essential; but the party has at all times a right to vary his pleadings, and even at 'the rules' to file a new declaration. To the pleadings in this case, no exception was taken, nor was any objection made at the trial.

The objection to the evidence, as applicable to the account filed, ought not to prevail. If Robert Barry was a partner in the transactions, to which the papers refer, the law raises an assumption. The plaintiff is not tied down to prove an express assumpsit, when proof is given that he was a partner; and an action will lie against one partner alone, on his express assumpsit.

2. The evidence of debts due by J. D. Barry, & Co. was properly applied to charge Robert Barry, the plaintiff in error. There must always be a plea in abatement, where the parties are not joined. As to joinder of parties; Mr. Foot cited, with other cases, Minor vs. the Mechanics Bank of Alexandria, decided ante page 46, this Term; and also 5 Burr, 2611.

If the evidence could in any way charge the defendant below, it was admissible. Partnership may be proved by circumstances; and the Court did not decide upon the effect of the testimony, but only that it should go, generally, to the Jury. This is a case in which the principal is charged with the acts of the agent, within the scope of his authority; the business of the concern being intrusted to the management of Rice by the parties.

Mr. Chief Justice MARSHALL delivered the opinion of the Court.