delivered the- opinion of the court, May 17th 1875.
The action being indebitatus assumpsit, and the narr. containing a count for goods sold and delivered, the agreement of August 7th 1857, with the endorsement thereon, and the paper signed by the defendant, also endorsed thereon, was, we think, admissible in evidence as an executed contract for the purchase of the canal-boat named in the agreement, upon the terms therein specified. Giving entire assent to the contention of the defendant that he thereby entered into copartnership with the- original contractor, he made the contract his own contract, even if he had not expressly agreed, as he did, “ to account to the within-named Abraham Collins for the full amount of the within agreement.” Was it any answer to the action to set up that there was another person liable to him on the contract jointly with him ? There is nothing better settled than that the non-joinder of a co-contractor can only be taken advantage of by a plea in abatement. It would be ah affectation of learning to cite authorities for this proposition. We have our own cases of Bellas v. Fagely, 7 Harris 275; Chorpenning v. Royer, 8 P. F. Smith 474 — full to the point. Nor does it matter that the declaration is upon an individual contract. A joint contract is not at variance with the count. It is still the undertaking of *426the defendant m solido; though being with another, he has the right to have that other brought in, but only in the very first stage of the cause, by plea in abatement. Had the written evidence been admitted, as it ought to have been, the other offers would have been unnecessary; and certainly the learned judge was right in rejecting them, as the contract was in writing.
Judgment reversed, and a venire facias de novo awarded.