Williams v. Southern Pacific Railroad

Britt, C. Action to recover compensation for certain paving and other street work which plaintiff alleged was done by him at defendant’s request. The answer consisted of denials of the material averments of the complaint. The trial was before a jury, and the verdict and judgment were in plaintiff’s favor for the amount of the alleged value of the work.

1. It was disclosed in the course of the evidence for plaintiff at the trial that the contract for the work was made orally between one Haley, the agent of defendant, and the plaintiff Williams—the latter acting, however, as was known to defendant, on behalf of a copartnership composed of Williams and two others, having no firm name, but carrying on business together and sharing its profits; the work in question was done by the firm at the joint expense. Thereupon defendant moved the court for judgment of nonsuit on the ground that plaintiff could not individually maintain the action upon a contract made with and performed by the partnership; which motion was denied.

There is no doubt that at common law all the members of a partnership, except dormant or merely nominal partners, must be joined as plaintiffs in an action of this character, and that before the code a motion for nonsuit made as in this instance would have been sustained. (Cushing v. Marston, 12 Cush. 431; Collyer on Partnership, secs. 649, 667; Story on Partnership, sec. 241; Wilson v. Wallace, 8 Serg. & R. 53.) In the case last cited, decided more than seventy years ago, the supreme court of Pennsylvania, while sustaining the precise objection made by defendant here, yet ventured this reflection: “Perhaps, weighing the conveniences and inconveniences, it would be more convenient that the parties should, after issue joined, proceed on the merits, than that the defendant should be allowed to nonsuit the plaintiff on a mere matter of form.” There may be some room for debate whether the objection is matter of form only; but our legislation provides that of the parties to an action those who are united in inter[460]est must be joined as plaintiffs or defendants (Code Civ. Proc., sec. 382); that the defendant may demur to a complaint for defect of parties plaintiff (section 430); that if the defect does not appear on the face of the complaint the objection may be taken by answer (section 433); and that if objection on that ground be not taken by demurrer or answer, the defendant is deemed to have waived. the same (section 434). These provisions are substantially the same as the statutes of New York pertaining to the same subject; and under them it seems to be settled there that in actions upon contract, as well as in tort, one partner may recover the whole amount due his firm unless the defendant plead the nonjoinder. Among the reasons assigned is that the interest of a single partner extends to the entire demand; that as payment to him would discharge defendant’s liability to the firm, a recovery of the whole in the action by him has the like effect. (Zabriskie v. Smith, 13 N. Y. 322; 64 Am. Dec. 561; Patchin v. Peck, 38 N. Y. 39; Dickinson v. Vanderpoel, 2 Hun, 626. See, also, Sullivan v. New York etc. Co., 119 N. Y. 348; Chapin v. Clemitson, 1 Barb. 311.) In the view of the Minnesota court, the change in this behalf introduced by the code accords with the. suggestion above quoted from Wilson v. Wallace, supra, and it held that the ground here taken by appellant is untenable unless the objection is specially pleaded. (Davis v. Chouteau, 32 Minn. 548.) To similar effect is . Dunn v. Hannibal etc. R. R. Co., 68 Mo. 268. And in England, since the judicature acts of 1873-75, and the orders promulgated under them, the failure to join all the partners as plaintiffs is no longer fatal to an action. “ If all the members of a firm sue when one only ought to do so, or one only sues when all ought to do so, and the defendant can show that he is thereby prejudiced, . he can apply to have the improper parties struck out, or . the proper parties joined, as the case may be.” (Lindley on Partnership, 278.)