In an action upon a covenant contained in an agreement between
the covenantor and "S. and such other parties as he may associate
with him under the name of S. & Company," signed and sealed by
the covenantor, and signed "S. & Co." by the hand of S., acting
in behalf and by authority of the partnership, to pay to "the said
S. & Company, parties of the second part" for work to be done
by them, all those who are partners at the time of the signing of
the agreement may join.
The case is stated in the opinion of the Court.
MR. JUSTICE GRAY delivered the opinion of the Court.
This is an action of covenant brought by Silas Seymour and three
other persons, describing themselves as co-partners trading in the
name and style of S. Seymour & Company, and prosecuted since
the death of one of them by the survivors, against the Western
Railroad Company upon an agreement purporting to be made between
the defendant of the first part, "and Silas Seymour and such other
parties as he may associate with him under the name of S. Seymour
& Company, of the City of New York, of the second part," by
which "the said S. Seymour & Company, parties of the second
part," agree to construct a railroad as therein specified, and
"for and in consideration of the faithful performance by the
said S. Seymour & Company, parties of the second part, of all
and singular the conditions herein contemplated or contained on
their part proper for them to do, the Western Railroad Company, of
the first part,"
agrees to pay "unto the said S. Seymour & Company, parties
of the second part," certain sums in money, stock, and bonds. The
agreement states that "the parties hereto have interchangeably set
their hands," is duly signed and sealed in behalf of the defendant,
and is also signed "S. Seymour & Company," but is not
otherwise
Page 106 U. S. 321
signed nor sealed in behalf of the plaintiffs or either of
them.
At the trial, the plaintiffs proved the execution of the
agreement declared on, and offered evidence tending to show that
Seymour executed it in behalf and by authority of the firm of S.
Seymour & Company; that at its date, and until the subsequent
stoppage of work under it, the plaintiffs composed that firm; that
Seymour and the three others, as the persons whom he associated
with himself under the name of S. Seymour & Company,
immediately began and afterwards performed work upon the railroad
under the agreement, the results of which had ever since been
enjoyed by the defendant, and that the defendant knew that the
plaintiffs composed the firm of S. Seymour & Company and were
working upon its road under the agreement as contractors. But the
judge excluded the evidence, ruled that there was a variance,
directed a verdict for the defendant, and rendered judgment
thereon, and the plaintiffs alleged exceptions.
The Court is of opinion that these rulings were erroneous. In an
action upon a covenant made with two or more persons, all the
covenantees must join, although only one of them seals the
agreement.
Petrie v. Bury, 5 Dow. & Ry. 152;
S.C. 3 B. & C. 353;
Philadelphia, Wilmington &
Baltimore Railroad Co. v. Howard, 13 How. 307,
54 U. S. 337.
It is not necessary that all of them should be named in the
contract; it is sufficient that they are so described therein that
they can be identified. Shep.Touchst. 236;
Gresty v.
Gibson, L.R. 1 Exch. 112;
Reeves v. Watts, L.R. 1
Q.B. 412;
S.C. 7 B. & S. 523;
McLaren v.
Baxter, L.R. 2 C.P. 559. And upon a covenant with a
partnership by its partnership name only, all who are partners at
the time of its execution may sue.
Hoffman v. Porter, 2
Brock. 156;
Brown v. Bostian, 6 Jones (N.C.) 1; 1 Lindley
on Partnership (4th ed.) 476.
The agreement declared on -- by the recital that it is made
between the defendant and "Silas Seymour, and such other parties as
he may associate with him under the name of S. Seymour &
Company," by the repeated mention of "the said S. Seymour &
Company, parties of the second part," and by the signature of "S.
Seymour & Co." -- appears to the Court to
Page 106 U. S. 322
manifest the intention of both parties to the agreement to be
that all the persons associated together, under the name of S.
Seymour & Company at the time of the signing of the agreement,
should do the work and receive the compensation therein
stipulated.
It follows that the plaintiffs, upon proving to the satisfaction
of a jury the facts above stated, which they offered to prove,
would be entitled to maintain their action. The judgment for the
defendant must therefore be reversed and the case remanded with
directions to set aside the verdict and order a
New trial.