Barry v. Foyles
26 U.S. 311 (1828)

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U.S. Supreme Court

Barry v. Foyles, 26 U.S. 1 Pet. 311 311 (1828)

Barry v. Foyles

26 U.S. (1 Pet.) 311

Syllabus

The defendant in error had sued out an attachment under the law of Maryland against Robert Barry, and had filed an account against James D. Barry, said to have been assumed by Robert Barry, the plaintiff in error. Robert Barry appeared, gave special bail, and discharged the attachment. The plaintiff. below then filed a declaration of indebitatus assumpsit "for money had and received" and "for goods sold and delivered," to which Robert Barry pleaded the general issue. The parties went to trial and a verdict and judgment were rendered for the defendant in error.

The Court attaches no importance to the variance between the account filed when the attachment issued and the declaration filed after the attachment was dissolved by the entry of bail and the appearance of the defendant. The defendant having pleaded to the declaration, the cause stood as if the suit had been brought in the usual manner and no reference can be had to the proceedings on the attachment.

Where the general agent of parties carrying on business in a tan yard, instead of a journal of hides received for the parties from day to day, gave at considerable intervals certificates of the total amount of hides received from the last preceding settlement up to the periods when the certificates bore date, such certificates are equally binding as certificates detailing the separate transactions of each day, and may be read in evidence to charge the parties whose agent the person giving the certificates was.

The principle is that a contract made by co-partners is several as well as joint, and the assumpsit is made by all and by each. It is obligatory on all and on each of the partners. If, therefore, the defendant fails to avail himself of the variant in abatement when the form of his plea obliges him is give the plaintiff a proper action, the policy of the law does not permit him to avail himself of it at the time of trial.

The declaration in an action against one partner only never gives notice of the claim's being on a partnership transaction. The proceeding is always as if the party sued was the sole contracting party, and if the declaration were to show a partnership contract, the judgment against the single partner could not be sustained.

Where the suit is brought upon a partnership transaction against one of the partners and the declaration stated a contract with the partner who issued and gave no notice that it was made by him with another person, evidence of a joint assumpsit may be given to support such a declaration, and the want of notice has never been considered as justifying an exception to such evidence at the trial.

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

Page 26 U. S. 312

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.

Page 26 U. S. 314

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