HENRY W. THOMAS vs. W. EDWARD BENSON & another.

CONTRACT. Writ dated July 22, 1924.

In the Superior Court, the action was tried before Burns, J. Material evidence and exceptions saved by the defendant are stated in the opinion. There was a verdict for the plaintiff in the sum of $6,850.13. The defendants alleged exceptions.

W. A. Davenport, for the defendants, submitted a brief.

A. H. Tavernier, for the plaintiff.

SANDERSON, J. This is an action to recover a commission for procuring customers who took certain real estate in Westfield in exchange for real estate in the State of Connecticut. The answer was a general denial. The jury found for the plaintiff.

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The evidence presented a disputed question of fact - whether the commission claimed was due the plaintiff or a partnership of which the plaintiff was a member. The plaintiff contended that the nonjoinder of a plaintiff could be raised only by plea in abatement. The defendant excepted to the part of the charge in which the jury were instructed that that defence could be raised only by plea in abatement and to the judge's refusal to rule that if the plaintiff and one Meyer were in general partnership in the real estate business during the period in question no recovery could be had.

The general denial put in issue the allegations that, in the first count, the plaintiff was employed by the defendants and, in the second count, the defendants owed him the commission. These were essential parts of the contract. The contention that they were not maintained went to the cause of action, not to the form of the writ. White v. E. T. Slattery Co. 236 Mass. 28, 30. In an action of contract all joint contracting parties must join in an action for its breach. If the partnership existed, the defendants' contract was with them jointly and not with either separately. Fish v. Gates. 133 Mass. 441, 442. Nonjoinder of a defendant in an action of contract can be raised only by plea in abatement. Leonard v. Speidel, 104 Mass. 356, 359. The court said, in Wilson v. Nevers, 20 Pick. 20, 22: "in the earlier reported cases the want of proper parties as defendants was held a good defence under the general issue, upon the ground of variance between the promise described in the declaration, and the proof offered in the case. But as such defence was founded on matters more particularly within the knowledge of the defendant, and as in all joint contracts each one is liable to the plaintiff to the whole amount, whether the action be against him alone, or jointly with his co-promisors, with a view to avoid the evils that would result from repeated nonsuits on the same cause of action the rule was established, that the omission to include all the promisors was a defect in form merely, and could be taken advantage of only by plea in abatement."

The reasons stated for establishing this rule as to defendants are not applicable in case of nonjoinder of plaintiffs in

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actions of contract, and no such change as to plaintiffs seems to have been made. The court said in Baker v. Jewell, 6 Mass. 460, 462, in an opinion by Parsons, C.J., "the want of the proper plaintiffs in actions on contract, is an exception to the merits, and is to be taken advantage of, either on demurrer, in bar, or on the general issue, but not by plea in abatement." Furthermore if a defendant settles with or takes judgment against one of two joint contracting parties he severs the contract so that he may be liable in an action by the other alone. Baker v. Jewell, supra. Boston & Maine Railroad v. Portland, Saco & Portsmouth Railroad, 119 Mass. 498, 499.

The judge erred in ruling that nonjoinder of a plaintiff in an action of contract can be taken advantage of only by plea in abatement, and in refusing to submit to the jury the question whether the defendants' contract was with a partnership.

Exceptions sustained.