| Conn. | Jun 15, 1841
The note in this case, was signed by the plaintiff and the two defendants. The question now is, whether-he can sustain an action at law upon it, in the same manner as if it had been executed by the defendants only. Jn other words, can he treat his own signature as a nullity, and declare upon the note as one made by the defendants ?
It is very obvious, that if the parties were partners, and the plaintiff had advanced to the co-partnership a sum of money, and taken a company note for the amount, he could not sustain an action at law upon it, in his own name, against the other two partners. The money, in such case, would not have beep received, by the two only, but by all the partners ; and the plaintiff, being one of them, would be liable for his share, And it would make no difference in principle, whether the note was executed by one, in the name of the firm, or by al] the members of the company, in their individual names. It would manifestly be unjust to compel twq persons to pay to one, a debt, which had been contracted by the three, for their joint benefit, and to the payment of which all were liable to contribute.
It is a general rule, that one partner cannot sue his co-partners at law, for any debt or demand towards which he must ultimately contribqte, The authorities upon this subject are numerous and decisive. Holmes v. Higgins, 7 Barn. & Cress. 74. (8 E. C. L. 27.) Teague v. Hubbard, 8 Barn. & Cress, 345. (15 E. C. L. 234.) Milburn v. Codd & al. 7 Barn. & Cress. 419. (14 E. C. L. 67.) Neale v. Turton&cal. 4 Bing. 149. (13 E. C. L. 383.) Bosanquet v. Wray & al. 6 Taun. 597. (1 E. C. L. 495.) Pitcher v. Barrows & al. 17 Pick. 361. Moffat v. Van Millengen, 2 Bos. & Pul. 125. note.
But it is said, that here is no evidence of any co-partnership. The motion is indeed silent as to the consideration of' the note. The inference is to be drawn from what appears upon the face of the instrument. It there appears, that, for value received, the plaintiff and defendants promised to pay. By whom was the value received ? The fair import of the language is, that it was received by all the makers of the note jointly ; and in consideration of that, they all jointly promis-, ed to pay.
For what purpose it was received, is not shewn; nor can it be material. It may have been received to pay a joint debt,
As the note in this case is payable to the plaintiff, or his order, had he endorsed it to a third person, the endorsee might have sustained an action against all the makers. The technical rule of law, that a party cannot be both plaintiff and defendant, would in that case be obviated. And a promise to pay to the order of one of the makers, is just as obligatory as if it were payable to the order of any other person. The signature of the plaintiff, in such case, would not be treated as a nullity. Nevins v. Townsend, 6 Conn. Rep. 5. If it would not, it is difficult to see how it can be so treated before endorsement.
Our advice, therefore, is, that no new trial should be granted.
New trial not to be granted»