Page:North Dakota Reports (vol. 1).pdf/492

 the name of “Benton Line,” or popularly so called, presents no error. It was entirely immaterial how many other business concerns by that name were operated at that time, there being no offer to show that it was on behalf of such other Benton line that Barr made the contract. His evidence that he executed it on behalf of the one in which defendants were interested is undisputed, and must therefore be taken as conclusive. He distinctly testified that the defendants Power and others authorized him to bind them by signing “Benton Line” to contracts. This disposes of a great many of the numerous assignments of error in the case. Did the operating of those three steamers jointly for the benefit of all the owners render them all liable on the contract in this case? If they were all liable, then defendants T. C. and J. W. Power cannot complain at this stage of the case that they only were sued, for the time to insist that all the other owners should be joined was when the answer wag served by plea in abatement. Such a defense is purely dilatory, and is waived both at common law and under our statute, if not specially pleaded. Comp. Laws, §§ 4909, 4912, 4913; Barry v. Foyles, 1 Pet. 316; Moore v. Bank, 13 Pet. 311; Manufacturing Co. v. Kimberly, (Minn.) 33 N. W. Rep. 782; Davis v. Choteau, (Minn.) 21 N. W. Rep. 748.

We hold that the owners running these boats jointly for their mutual benefit were copartners in that business, and were all liable as such on the contract. made in the prosecution of that business by their agent on their behalf. §§ 4028, 4072 Comp. Laws. There is still another ground of liability under the undisputed evidence. The owners of these boats, by running them under the name of “Benton Line,” held out to the world that they were engaged in a joint venture for joint profit. Each vessel was not operated separately. To the outside world there appeared to be an association of boats, bound together by a common interest, operated under a common control, and in a common name. The owners of these boats, in whose interest they were managed, knew that an appearance of partnership was created by their conduct. On this rests an estoppel. Ordinarily another element is necessary to create a partnership liability by estoppel. It is generally essential to be shown that the per-