Woodworth v. Fuller, 24 Ill. 109 (1860)

April 1860 · Illinois Supreme Court

24 Ill. 109

Alvin Woodworth, Appellant, v. Oliver Fuller et al., Appellees.

APPEAL FROM COMMON PLEAS OF OITT OF AURORA.

Unless parties sue as partners, they must make proof, as at common law, to maintain an action.

This was an action brought by Oliver Fuller, Charles Perkins, and Edward Finch, against Erasmus Woodworth and Alvin Woodworth, before a justice of the peace. The defendants were sued as the guarantors of a note, signed by one Philip Smith. There was a judgment for plaintiffs before the justice, and the defendant, Alvin Woodworth, who alone was served, took an appeal to the Court of Common Pleas of the city of Aurora, Kane county.

The cause was tried before Parks, Judge, without a jury. The court gave judgment for the plaintiffs in the action before the justice, Fuller and Company.

O. J. Metzneb, for Appellant.

W. B. Plato, for Appellees.

Catón, C. J.

This action was brought by three persons, as individuals, nothing upon the face of the papers showing that they were partners. Upon the trial, they proved a cause of action in favor of 0. F. Fuller & Co., against the defendants, but failed to show that they constituted the firm of 0. F. Fuller & Co. On this proof they were not entitled to judgment. Had they sued as partners, our statute might have dispensed with such proof. But unless they sue as partners, the statute does not relieve them from producing the proof which was required by the common law to maintain the action.

The judgment must be reversed, and the cause remanded.

Judgment reversed.