In April, 1880, the defendants attempted to form a limited copartnership for the purpose of carrying on business in the city of New York under the firm name of Hogg Patterson, the defendant Hutchinson being the special partner. *Page 535 Thereafter the plaintiff sold the firm certain goods, and this action was brought against all the members of the firm to recover the price of such goods. The defendant Hutchinson alone defended, setting up as his answer the formation of the limited copartnership, and claiming exemption from liability under the statute as a special partner.
The plaintiff in his complaint alleged a cause of action against the defendants as copartners, making no mention of the attempt to form a limited copartnership; and upon the trial he proved the sale of the goods to the firm, and then introduced in evidence the certificate and papers filed for the formation of the limited copartnership, from which it appeared that Hutchinson contributed to the capital of the firm $10,000; and then he offered to prove that he in fact contributed only $8,000. Upon the objection of Hutchinson's counsel this proof was rejected on the sole ground that it was not within the issue. The view of the trial judge was that the complaint, instead of treating Hutchinson as a mere general partner, should have been based upon the statute alleging the special defects in the formation of the limited copartnership.
In this there was error. If the proof had been received it would have shown that Hutchinson never in fact became a special partner, but that he was from the beginning a general partner, and liable as such. (2 R.S., chap. 4, tit. 1, § 8.) The cause of action against him was not based upon the statute, but upon his common-law liability as a general partner, and hence it was proper, in setting forth in the complaint the facts constituting plaintiff's cause of action, to charge him as a general partner, and then upon the trial to show that he was such by any competent proof.
The General Term was, therefore, right in reversing the judgment of the Special Term, and its order should be affirmed and judgment absolute ordered for the plaintiff, with costs.
All concur.
Order affirmed and judgment accordingly. *Page 536