delivered the opinion of the court.
It is urged as a ground of reversal that in an action against a firm on a partnership obligation, all partners composing the firm must be joined as parties defendant, except such partners as are dormant or secret; and that Joseph Baccash was not joined.
This contention is not in point under the facts and the pleadings. Appellants were sued as joint makers of the guaranty and are alleged to be co-partners therein, doing business under the firm name of Baccash & Saigh. The evidence tends to show that there was a firm of the same name doing business as merchants, having a store at No. 140 Sherman street, Chicago. But the evidence is uncontradicted that appellants alone signed the guaranty in question. It does not appear that the firm of Baccash & Saigh, composed of M. A. Baccash, Joseph Baccash and S. A. Saigh, ever authorized the execution of the guaranty or did in fact sign it. The verdict of the jury is supported by the evidence on that issue. According to the evidence Joseph Baccash was not known to appellee as a partner; and if he was a member of the firm, his connection therewith was dormant or secret. We cannot disturb the verdict of the jury on that ground.
Where an issue is joined on a plea in abatement, and the jury finds against the plea, the substantial merits of the plaintiff’s cause of action are admitted. The question of the amount of damages, however, remains to be determined.
The court, in its rulings and by its instructions .as to *125the amount of damages, tried the case upon the theory that the defendants, if liable, were liable for all expenses incurred by appellee in sending Neumann to Iowa, and the expenses in shipping the property to Chicago, and also telegraph bills and money paid Willner for the note in order to obtain possession of the property in Iowa. Evidence was admitted as to all these items. The court, at the request of the plaintiff, appellee, gave to the jury the following instruction:
“1. The court instructs the jury that if you find the issues for the. plaintiff you are required to assess the plaintiff’s damages against the defendants, and in assessing the plaintiff’s damages you have a right to allow to the plaintiff such amounts as were payable to the plaintiff in the form of rent up to the time the said property described in the contract was returned to the plaintiff, and you may allow to the plaintiff any loss or damage from any cause whatsoever, shown by the evidence to have been caused to the said tents, or any loss or damage arising through the default or failure on the part of said K. E. Neimy to return the tents in as good condition as they were received, excepting ordinary wear and tear, and you may allow to the plaintiff such sum or sums of money as the evidence shows to have been expended in and for the recovery of the said property and in returning the same to the possession of the said plaintiff, not exceeding the amount due on the contract for the purchase of-the tents and less any credits shown to have been received by the plaintiff.”
We are of the opinion that under the contract of guaranty appellants ar,e not liable for the one hundred and twelve dollars paid by appellee to Willner for the purchase of his note and claim against Neimy, or for the freight for the transportation of the property back to Chicago and the railroad fare and expenses of Neumann to Iowa. We find no provision in the contract between appellee and Neimy which covers any such expenses or authorizes them to be charged up against Neimy. The contract does not provide that Neimy *126should return the property in case of default. In the event of a default on Neimy’s part it authorizes appellee to take possession without notice, but it does not provide for the expenses of taking possession, or for paying off liens upon the property. We think, therefore, the court erred in admitting evidence of such expenses and payments, and in giving the above instruction. The instruction authorizes the jury to allow to the plaintiff “any loss or damage arising through the default or failure on the part of said K. E. Neimy to return the tents,” etc., and “such sum or sums of money as the evidence shows to have been expended in and for the recovery of said property and in returning the same to the possession of the said plaintiff, not exceeding,” etc. This is broader and more comprehensive than the contract.
In our opinion, appellee, under the evidence in the record, is entitled to recover for the value of the property missing, $76.50, and for damage and depreciation, not caused by ordinary wear and tear, $45, and for the rent which it would have received if Neimy had carried out and performed the contract, $135, making in all $256.50.
If, therefore, appellee shall remit the sum of $193.50 from the judgment within ten days the judgment will be affirmed; otherwise for the errors indicated the judgment will be reversed and the cause remanded.
Affirmed on remittitur; otherwise reversed and remanded.
July 2, 1907, remittitur filed and judgment affirmed.