This was an action of assumpsit brought by the plaintiffs, who aré a mercantile firm in St. Louis, against the defendant, lor goods sold and delivered. The plea was non assumpsit, and the only question to be de-*35iermined is, whether, under these circumstances, a suit may be sustained in the name of the firm. Our statute, enabling plaintiffs to bring suits in this manner, is limited in its operation to those brought on promissory notes, bonds, bills or other instruments of writing, and would not reach a case of this kind: and the whole case, therefore, turns upon the construction of what should be the law, independent of statute.
The authorities cited by the counsel for the defendant, are all eases of misnomer of the plaintiff. There is no doubt but this may be taken advantage of under the general issue. But in the present instance there is no allegation that the name of the firm is not correctly set forth. We must, therefore, look in a different direction for reasons on which to found a decision of this ease.
No very weighty argument against allowing suits to be brought in this manner can be drawn from any other source than that of precedent. The defendant dealt with the plaintiffs in their partnership capacity and under their partnership name. He could not, therefore, be surprised by the suit being commenced by them under that name. A recovery in the present action would be quite as effectual a bar to a subsequent suit for the same demand as though the names of the partners had been particularly set forth.
Formerly the courts were fastidious in requiring the names of the partners to be particularly set forth and proved, and in regarding a failure in this respect as a fatal defect at any stage of the proceedings. But this strict rule has been continually undergoing modifications, in order to encourage and facilitate the operations of mercantile traffic. If this could become a new question in the States of the Union, or even in England, we believe the courts would regard mercantile partnerships as persons in law, capable of sustaining or defending suits when brought by or against them in that capacity. We are now in that very situation, and we think it better to lay down such a rule in the commencement as will not require continual alteration. This rule will be to permit the plaintiff to make his legal demand for payment under the very name by which the credit was given.
Judgment will therefore be rendered for the plaintiffs, pursuant to the stipulation filed in this case.