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Sawyer et al. v. Worthington.

sumptions in regard to the understanding of the parties, or we might possibly think of some other suggestions which might properly enough have been made to the jury. But none of these are any sufficient ground for a new trial in the case upon exceptions. The only question is, whether the law was correctly stated to the jury. And we have said that it was.

II. Upon the point, whether the question submitted to the jury properly arises upon the declaration, it is alleged that the plaintiff believing the suit was not to be entered in court, did not attend to defend the same, and in consequence of such absence the defendant fraudulently procured judgment, by default. After verdict all presumptions are to be made in favor of the declaration, and of the construction adopted by the court and jury below. And especially is this to be done, where the particular objection now urged was not specifically stated at the trial. Under this view, we think the statement in the declaration is to be understood that the plaintiff absented himself from the trial under the expectation and confidence that the suit was to be discontinued, and that defendant, knowing that he acted upon that confidence, procured judgment to be entered by default. This was the very point submitted to the jury and being found by them is, we think, decisive of the case.

Judgment affirmed.

CYRELL A. SAWYER AND DARIUS HEALEY v. GEORGE WOR

THINGTON,

JR.

Joinder of plaintiffs.

The plaintiffs agreed to take jobs of work, and work together, each to be allowed

for the time he worked on any particular job, and to hire, as near as possible, equal amounts of help, the profit of which was to be divided between them. The work in question was contracted for, by one of the plaintiffs, with reference to this agreement; and he informed the defendant that he was in partnership, or connected in business with the other plaintiff. The work charged for was done by the plaintiffs and their help, in pursuance of said agreement. Held that it was properly charged, and that a recovery thereof could be had in the name of the the plaintiffs jointly.

Sawyer et al. v. Worthington.

BOOK ACCOUNT. The plaintiffs' account was for work of themselves and others upon, and for materials furnished for a starch factory built by the defendant in the summer of 1853. The auditor reported that the charges were correct and reasonable, as to amount, and that the plaintiffs were entitled to recover therefor, subject to the opinion of the court, as to the right of the plaintiffs to recover in their joint names, upon the facts following.

The plaintiffs, who were both mill-wrights, agreed verbally, in the summer of 1853, to take jobs of work and work together on these terms; each was to be paid for the labor he might perform, and each was to hire, as near as possible, an equal amount of help, and divide the profit on the help hired; there was no agreement, and nothing was said between them of the division of losses, if any should occur, in any job they might take. After they had made this agreement, the defendant and a Mr. Little, since deceased, applied to the plaintiff Sawyer to construct the necessary gearing and machinery for a starch factory they were then building. Sawyer informed them that he was in partnership, or connected in business with the plaintiff Healey, and agreed with the defendant and Little to do their work for them. The work charged for was performed by the plaintiffs and their hired help, under their agreement, in reference to which Sawyer contracted with the defendant, as above stated. It did not appear that the plaintiffs ever took any other jobs than this under their said agreement; and it did appear that they did afterwards each take and perform separate jobs, in which the other had no interest.

The county court, June Term, 1855,-UNDERWOOD, J., presiding,-rendered judgment, on the report, for the plaintiffs.

Exceptions by the defendant.

J. H. Prentiss for the defendant.

There was no partnership between the plaintiffs. To constitute a partnership, as between the parties themselves, there must be a mutual agreement to share in the profit and loss of the business in which they are engaged. Bowman et al. v. Bailey, 10 Vt. 170. Kellogg v. Griswold, 12 Vt. 291. Tobias v. Blin, 21 Vt. 544. Griffith et al. v. Buffum et al. 22 Vt. 181.

Persons holding themselves out as partners, though in fact they

Sawyer et al. v. Worthington.

are not, may be charged as such by one who deals with them as such ; but the declaration of one of two persons that they are jointly interested, is not evidence to charge the other. Cottrill v. Van Duzen, 22 Vt. 511.

Had there been negligence or any other cause of action accruing to the defendant, growing out of this transaction, what fact is found in this case that would tend to fix any accountability on Healey to the present defendant ?

J. L. Edwards for the plaintiffs.

Two or more persons may be holden as partners with respect to third persons, and joint participation in the profits will make them so, and not be partners as between themselves. Kellogg v. Griswold, 12 Vt. 291. Stearns v. Haven et al. 14 Vt. 540. And persons are to be treated as partners as respects third persons, if they so conduct and hold themselves out as such, whether their contract, as between themselves, would in fact make them so or not. See authorities above cited.

Although the plaintiffs were not partners, yet they were jointly and equally interested in the contract with the defendant, and are therefore competent to sustain a joint action. They were both to be benefited by the contract, and both acted as ostensible parties to it. Bowman et als. v. Bailey, 10 Vt. 170. Matthews v. Felch et als., 25 Vt. 536. 2 Greenleaf on Ev. 476. Dix v. Otis, 5 Pick. 38.

The opinion of the court was delivered by

ISHAM, J. We can entertain no doubt that this suit was properly brought in the name of these plaintiffs. The auditor has found that a contract was made between them, in 1853, to take jobs of work together, and to divide the profits between them, and that this contract was made with particular reference to the work to be done for the defendant. Of this contract the defendants were informed when the plaintiffs agreed to do their work for them. This gave the plaintiffs a joint interest in the contract which will enable them to sustain this action, not only for their services, but for such materials as were furnished and used in fulfilling their contract. Though nothing was said in relation to the

Frost v. Philbrook et al.

loss, if any should be sustained, yet the law will determine the matter by apportioning the same between them, in the same proportion that they were to share in the profits. The auditor having found that the account is just and reasonable, the plaintiffs are entitled to their judgment.

The judgment of the county court is affirmed.

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JACOB Frost v. Daniel PHILBROOK AND JAMES H. Wood

BURY.

Review.

The plaintiff, in an action of ejectment against two defendents, recovered a verdict at

the first trial against one only of them, who entered a review, and the plaintiff at the same time entered a review as to the other defendant. At the second trial a verdict was rendered in favor of both of the defendents. Held that the plaintiff was not then entitled to review the action as to the defendant against wbom he obtained a verdict at the first trial.

EJECTMENT for a lot of land in Lowell. A trial was had in the county court at the June Term, 1850, when a verdict was returned for the defendant Philbrook, and against the defendant Woodbury. The plaintiff thereupon reviewed as to Philbrook, and Woodbury reviewed as to himself. A second trial was had at the June Term, 1855, to which time the cause had, from term to term, been continued, when a verdict was returned in favor of both of the defendants. The plaintiff claimed the right to review as to the defendant Woodbury, but the court -UNDERWOOD, J. presiding,—denied the right and refused to grant the same ; to which the plaintiff excepted.

Sumner & Willard for the plaintiff.

T. P. Redfield for the defendant.

The opinion of the court was delivered, at the circuit session in September, by

BENNETT, J. The only question in the case is, did the county

Frost v. Philbrook et al.

court err in denying to the plaintiff a review? The action is ejectment; and

upon the first trial the plaintiff had a verdict against Woodbury, and the defendant Philips had a verdict in his favor. The plaintiff entered his review, as against Philips, and the defendant Woodbury entered his review against the plaintiff. Upon the second trial the verdict was for both defendants, and the plaintiff proposed to enter his review against Woodbury, which was denied him. It was decided by this court before I was a member of it, in the case of Sheplee et al. v. Page et al. (not reported.) that in an action of tort one defendant is entitled to review his case in the county court, even though the judgment was final as to the other defendants ; and this decision was acted upon in the case of Paine el al. v. Tilden et al., 20 Vt. 563. This decision was made, no doubt, upon the principle that all torts committed by two or more are several, as well as joint; and that where a final judgment has been obtained against one defendant, and a review entered by the other, the effect is to save the proceedings, and to leave the judgment still in force as to the defendant against whom it was final. We at first thought that, under the decisions already made, the plaintiff was improperly denied his review, but upon more mature reflection we are inclined to think otherwise. The statute is, “that either party may once, and no more, review his cause.” The plaintiff's action is ejectment, to recover the seizin and possession of a piece of land, an entire thing; and it is not improbable, though it does not appear from the case, that the two defendants stand in the relation of landlord and tenant, and that the title of one is subordinate to that of the other; or the two defendants may claim by a joint title ; or their defense may have rested solely in a want of title in the plaintiff. The plaintiff's title is an entire thing to be tried, and so it may be said of the defendants' title, if they stand in the relation of landlord and tenant, or hold by a joint title ; and in either of the cases we cannot think that the plaintiff should be permitted, after two verdicts the same way upon the title, further to litigate it, by attempting to sever the defendants by a review. The plaintiff saw fit to bring a joint action against the two defendants, and we have the right to suppose he rested his case, as to both, upon the same title ; and it may

be that, on the first trial, both defendants were not found to be in pos

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