(after stating the facts). It is the contention of appellant that under the uniform law relative to the sale of goods, chapter 228, 3 Comp. Laws 1915, there was in the case at bar a completed sale and the court was in error in submitting that question to the jury. Under the testimony above quoted we are of opinion'that the court properly submitted this question. It is, we think, apparent that the minds of the parties never fully met as to what should be required of the plaintiffs with reference to the papers showing breeding and transfers of title of the two stallions named. If this question was properly submitted and properly decided by the jury there remains but one matter for determination and that is whether the plaintiffs are debarred from prosecuting their action because of the provisions of Act No. 164, Pub. Acts 1913 (3 Comp. Laws 1915, § 6354 et seq.). We do not overlook the contention of the appellants with reference to the alleged errors of the court in his instructions to the jury upon the question of rescission. Under the finding of the jury that no completed sale had been made it follows that there was no contract *223to rescind, and that when the demand was made for the return of the horses to the plaintiffs, defendants were holding them, not under any title acquired by the antecedent negotiations of a sale, but simply pending those negotiations.
Under the liberal provisions of our statute which permits amendments even in this court, in the interests of justice, we have no doubt that the court below was not in error in .regarding the action as one in tort rather than in assumpsit.
Coming, then, to the provisions of the statute, can it be said that the members of a copartnership who have failed to comply with the law in filing a certificate in writing with the county clerk containing the required information as to the details of the copartnership, are prevented from using the courts of the State for the purpose of redressing a wrong? We think not. It would, we think, hardly be claimed that had defendants stolen the 13 horses from a barn of the plaintiffs, the plaintiffs, even though they, had not filed the certificate required by law, could not have maintained an action in replevin or for a wrongful conversion of the animals. We are not unmindful of the fact that we have held (Maurer v. Greening Nursery Co., 199 Mich. 522) that the members of a co-partnership who have not complied with the act cannot prosecute an action under a contract. We do not think, however, that the effect of this statute should be extended, it being in plain derogation of common law rights.
Judgment is affirmed.
Bird, Moore, Steere, Fellows, and Stone, JJ., concurred. Ostrander, C. J., and Kuhn, J., did not sit.