A. B. Maynard and G. F. Edmunds v. Wm. P. Briggs, 26 Vt. 94

The opinion of the court was delivered by Redeield, Ch. J. I. The defendant objects to the plaintiffs recovering in a joint action for services rendered in his suit, while they were in partnership, and this known to the defendant, at the time the services were rendered, on the ground that the defendant retained plaintiff, Maynard, in the suits before he formed the partnership with the other plaintiff. Nothing is stated by the auditor to show that the defendant will be embarrassed in his defence, or in any way injuriously affected by the suit being brought in the name of the two plaintiffs.

And where that is not the case, the suit may always be brought, either in the name of the parties with whom the contract is made, or in the name of those legally interested at the election of the plaintiff. This is the law, in regard to dormant partners, and factors doing business in their own names. Lapham v. Green, 9 Vt. 407. Wait v. Johnson, 24 Vt. 112.

Under the circumstances of this case, it is questionable, I think, whether the plaintiff, Maynard, if objection had been made by defendant, could have sustained an action in his own name alone, for the services performed by the partnership which seems to have been open, and known to the defendant. II. The auditor does not seem to have found any such negligence in the Keyes suit, at the final term, as will justify this court, as it seems to us, in saying the plaintiffs are precluded from recovering for their services, at the former terms, when no negligence is complained of.

If they were guilty of neglect, at the last term, they will still remain liable, and that should certainly have been distinctly found by the auditor, to deprive them of all recovery for services in the suit, III. In regard to the $3 term fee charged the defendant for attending his suits, it is certainly not an uncommon charge, and was never regarded as exorbitant, to my knowledge. The statute limiting the taxable costs of the party to travel and $2 term fee, would not control a charge between attorney and client.

The practice of charging $3 probably grew out of the practice of taxing $2 term, and then travel for parties residing more than twenty miles from court, and who did not attend court. That a dormant partner even, which Mr. Edmunds in this case is not, may join or not, at the election of the plaintiffs, is an universally recognized rule, in the English courts, at this day, and so laid down, in all the elementary writers upon this subject, and is distinctly put forth, as a basis of decision, by this court. See Hilliker v. Loop, 5 Vt. 116. In Lapham v. Green, 9 Vt. 407, and virtually in Morton v. Webb, 7 Vt. 123.

Collyer on Part. 539. Judgment affirmed. ’