
31 U.S. 1 (____)
6 Pet. 1
GERRET SCHIMMELPENNICK AND ADRIAN TOE LAER, TRADING UNDER THE FIRM OF R. AND J.R. VAN STAPHORST
v.
JOSIAH AND PHILIP TURNER.
Supreme Court of United States.

*3 The case was argued by Mr Stewart for the plaintiffs, and by Mr N. Williams for the defendants.
*5 Mr Justice THOMPSON delivered the opinion of the Court.
This case comes up from the circuit court for the district of Maryland, upon a division of opinion in that court upon a point stated on the record in the following manner, viz. And thereupon the defendants, to maintain the issue on their part, gave in evidence to the jury, that William Turner, the person mentioned in the declaration in this cause, died on the 6th of January 1819. That the said William was formerly a partner with the said Josiah and Philip, under the firm of Josiah Turner and Company, but that the said copartnership was dissolved in October 1817, and that a new copartnership was formed between the said Josiah and Philip in 1820, under the firm of Josiah Turner and Company.
Whereupon, the defendants by their counsel prayed the *6 opinion of the court, and their direction to the jury, that the plaintiffs are not entitled to recover, because the defendants are sued as surviving partners of William Turner, whereas the proof is, that William Turner had departed this life some months before the first transaction took place between the plaintiffs and defendants, and therefore could not constitute one of the firm of the defendants at any time during the transaction in question, and that therefore there is a variance between the contract declared on, and the contract given in evidence. Upon which prayer the opinions of the judges were opposed.
The declaration contains two counts. The first, setting out the cause of action, states as follows: for that whereas the said defendants, merchants and copartners, trading under the firm of Josiah Turner & Co., in the lifetime of said William, on the 1st day of March in the year 1821, were indebted to the plaintiffs, &c., and being so indebted, the defendants undertook and promised to pay, &c. The second count is upon an insimul computassent, and begins: whereas also the said defendants afterwards, to wit, on the day and year aforesaid, accounted with the said plaintiffs, of and concerning divers other sums of money, due and owing from the said defendants, and then in arrear and unpaid, and being so found in arrear, the defendants promised to pay, &c.
Whatever objection may arise under the first count in the declaration, with respect to a variance between the contract, or cause of action, and the evidence to maintain it, that objection does not exist as to the second count. It is to be borne in mind that it forms no part of the question upon which the opinion of the judges was opposed, whether the evidence was admissible under the count upon an insimul computassent. The point of objection was, that the cause of action as stated in the declaration arose against the defendants and William Turner, and the evidence only showed a cause of action against the two defendants unconnected with William Turner, and which arose since his decease.
The only allegation in the second count in the declaration, from which it is argued that the contract declared upon was one including William Turner with Josiah and Philip, is, that the said defendants accounted with the plaintiffs, &c. But *7 this does not warrant the conclusion drawn from it. The defendants were Josiah and Philip Turner. William Turner was not a defendant, and the reference by the terms the said defendants could not include him. It does not even describe the defendants as survivors, or allege that they accounted, as such, or in the lifetime of William Turner. But the whole cause of action as set out in this count arose against Josiah and Philip, entirely unconnected with William. The evidence, therefore, showing that William Turner died before the first transaction took place between the defendants and plaintiffs, did not show any variance between the contract declared upon in this count, and the contract proved. The one declared upon in the second count was between the plaintiffs, and the defendants Josiah and Philip Turner, and the evidence did not show a contract varying from it.
We are accordingly of opinion that there was no variance between the contract declared upon in the second count, and the contract proved upon the trial, with respect to the parties thereto.
This cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Maryland, and on the point and question on which the judges of the said circuit court were opposed in opinion, and which point was certified, to this Court for its opinion in pursuance of the act of congress in such case made and provided, and was argued by counsel; on consideration whereof, it is the opinion of this Court that there was no variance between the contract declared upon in the second count, and the contract proved upon the trial, with respect to the parties thereto; whereupon it is ordered and adjudged by this Court that it be certified to the said circuit court as the opinion of this Court, that there was no variance between the contract declared upon in the second count, and the contract proved upon the trial, with respect to the parties thereto.
