majority">

The opinion of the court was delivered by

Ross, J.

The commissioner has found that the contract for building the bridge was entered into by the trustee with Woodward alone, without any knowledge that Waterman was tp share in the undertaking; and that Woodward and Waterman built the bridge together, under an agreement to share in the profit and loss, which makes them partners in the construction of the bridge. The commissioner has not directly found whether Woodward and Waterman were partners at the time the contract was entered into in the name of the town as one party,' and in the name of Woodward as the other party. If the partnership existed at the time the contract was entered into, Waterman was a secret partner in the contract; and Woodward, in entering into the contract in his own *106name, was acting as the agent of the partnership, consisting of Woodward and Waterman, and bound them both alike to the fulfillment of the contract; so that the town could have maintained an action against both, for a non or mal-fulfillment of the contract; and they could maintain an action as partners against the'town for the recovery of the price for building the bridge. The majority of the court think that the facts found by the commissioner, make Woodward and Waterman partners at the time the contract was entered into by Woodward in his name alone. If such- is the result of the facts found by the commissioner, the debt which would become due from the town by the construction of the bridge was, by the contract, a debt due to Woodward and Waterman as partners, and one, as regards the town, the collection of which they could enforce in the name of Woodward alone, because the contract was made in his name, or in the name of Woodward & Waterman as partners contracting under the name-of Woodward. Whichever way the suit might be brought, the town would be entitled to all the set-offs and equities which it could have if the suit was brought in the name of Woodward alone. The indebtedness from the town, by the contract, was to the two as partners, and could not be attached by the plaintiff as the sole debt of Woodward, and the trustee was properly discharged, and the claimants allowed to hold the indebtedness from the town. Towne v. Leach, trustees and claimant, 32 Vt. 747. If, on the other hand, as I think, the result of the facts found by the commissioner places the formation of the partnership between Woodward and Waterman immediately subsequent to the making of the contract between the town and Woodward, Waterman could not be a party to that contract by reason of being the secret partner of Woodward, inasmuch as the partnership did not exist at the time the contract was made; an'd, therefore, Woodward could not have been his agent, or the agent of the partnership, in making the contract in his own name. Nevertheless, the fact remains, as found by the commissioner, that the contract was entirely performed by Woodward and Waterman as partners, and the entire indebtedness from the town created by the performance of the contract belongs to them as partners. The indebtedness of the *107town never was perfected in, and of right never belonged to Woodward alone, except nominally. Under the doctrine established in Smith v. Foster, 36 Vt. 705, Woodward and Waterman could maintain an action in their joint names against the town for the recovery of this indebtedness, allowing to the town all the set-offs and damages which it might be entitled to under the contract against Woodward alone. If this indebtedness had been created by Woodward alone, or had, rightfully, at one time belonged to him alone, and Waterman had purchased one half of it, or a joint interest in it, he would have been obliged to have notified the town of such purchase, to have protected it from attachment by the trustee process as a debt due to Woodward. But the indebtedness having been created by the performance of the contract by Woodward & Waterman as partners, there has never been any purchase or transfer of an indebtedness of the town from Woodward to Woodward & Waterman; and hence- no occasion for Woodward & Waterman to notify the town that such indebtedness belonged to them. The indebtedness of the town has never belonged solely to Woodward, or been his sole property. The trustee process only operated to attach the individual or sole rights or property belonging to Woodard in.the hands of the town at the time of the service thereof. There were, and never had been, any such rights or property in the hands of the trustee. Hence, in whichever light the facts found by the commissioner are viewed, the result' is the same : that the trustee was properly discharged, and the claimants allowed to hold the indebtedness due from the town.

The judgment of the county court is affirmed.

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