existing property and rights of the firm,-unless he may sue as an assignee, or unless, after the accession of the incoming partner, there has been a new and binding promise to pay the firm as newly constituted.2 Dormant partners are admissible but not indispensable parties. Nominal partners need not be joined unless they have been expressly named in the contract, but it is not improper to join them.5 These rules seem not to be changed by the codes of procedure.

§ 326. Same subject. The mere fact that the partnership has since been dissolved does not ordinarily change the rule requiring joinder. If the partnership was dissolved by the death of a partner, then, as will be seen, the surviving partner or partners will sue "as survivors of" themselves and the deceased partner. If dissolved by the assignment of one partner's in

289

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§ 327]

LAW OF PARTNERSHIP

terest, the action will be in the names of the remaining partner and the assignor for the benefit of the assignee, except in jurisdictions where an assignee may sue in his own name; if dissolved by bankruptcy of one partner, the solvent partner and the assignee would sue under former Acts, though under the entity theory of the present Act the rule may be different as to the assignee.10 On partnership claims assigned by an outgoing partner to the others the latter could not, at common law, sue in their own names alone (except where the claim was a negotiable instrument) but must sue in the name of all for the benefit of the assignees.11 Under some statutes and the codes of procedure, the assignee may sue in his own name.12

In actions upon contract, at common law, a mis-joinder or nonjoinder of necessary parties as plaintiffs, where the defect appeared upon the face of the pleadings, could be taken advantage of by demurrer, motion in arrest of judgment, or writ of error; if not so apparent, by plea in abatement or motion for a nonsuit. Under the codes of procedure, the objection must usually be raised by pleading.13

§ 327. b. Contracts made in name of one partner for the firm. Where the contract was made in the name of one partner but for and on account of the partnership, the action should usually be brought, on simple contracts, in the name of all the partners who constituted the partnership at the time the contract was made; 14 on a simple contract in writing made in the

8 See Pugh v. Holliday (1854), 3 Ohio St. 285.

9 See Murray v. Murray (1821), 5 Johns. (N. Y.) Ch. 60; Browning v. Marvin (1880), 22 Hun (N. Y.) 547; Pugh v. Holliday (1854), 3 Ohio St. 285.

10 See In re Meyer (1899), 39 C. C. A. 368, 98 Fed. 976; § 414.

11 See Howell v. Reynolds (1847), 12 Ala. 128; Molen v. Orr (1884), 44 Ark. 486; Lunt v. Stephens (1845), 24 Me. 534; Tate v. Ins. Co. (1859), 79 Mass. (13 Gray)

79; Mosgrove v. Golden (1882), 101 Pa. 605.

12 See Viles v. Bangs (1874), 36 Wis. 131; Walker v. Steel (1886). 9 Colo. 388, 12 Pac. 423; West v. Citizens Ins. Co. (1873), 27 Ohio St. 1, 22 Am. Rep. 294.

13 See Williams v. Southern Pac. R. Co. (1895), 110 Cal. 457, 42 Pac. 974; Dodge v. Ship Co. (1869), 37 How. Pr. (N. Y.) 524, 31 N. Y. Super. Ct. 453, 6 Abb. Pr. (N. S.) 451; Molen v. Orr, supra.

14 Ordinary informal dealings with

name of one partner, either the partners or the one in whose name it was made may ordinarily sue; 15 if the contract were expressly made with one partner to the exclusion of the partnership he alone must sue upon it; 16 on a contract under seal or a negotiable instrument the action must be brought in the name of the partner who was the party to it.17

Where the partners sue on a contract made by one partner who did not disclose the existence of the firm, the defendant may usually avail himself of any defenses which might have been open to him if the partner had sued in his own name, and which he had acquired before he knew of the interest of the partnership.18

one partner who was acting for the partnership would usually create rights of action in the partnership. See Creel v. Bell (1829), 2 J. J. Marsh. (Ky.) 309; De Wit v. Lander (1888) 72 Wis. 120, 39 N. W. 349; Kefauver v. Price (1918), 138 Ark. 342, 206 S. W. 664.

Where several partners ostensibly carry on business, but in the name of one of them as the firm name, all should sue. Wilson v. Wallace (1822), 8 Serg. & Rawle (Pa.) 53. An undisclosed partnership would usually stand upon the same footing as to rights of action as an undis. closed principal. (See II Mechem on Agency, § 2025); Badger v. Daenieke (1883), 56 Wis. 678, 14 N. W. 821; Curtis v. Belknap (1849), 21 Vt. 433.

15 See Curtis v. Belknap, supra. Partner in whose name a bill of lading has been issued may sue upon it. Mo. Pac. R. Co. v. Smith (1892), 84 Tex. 348, 19 S. W. 509. Partner in whose name insurance policy was issued may sue upon it: Mutual F. Ins. Co. v. Hammond (1899), 106 Ky. 386, 50 S. W. 545, 20 Ky. Law R. 1944; Clement v. Brit. Am. Assur.

Co. (1886), 141 Mass. 298, 5. N. E. 847.

16 Where a written contract is expressly made with two named partners of a named partnership of three, the two named only may sue. Hilliker v. Francesco (1877), 65 Mo. 598. Creditor who knowingly accepts note of one partner and gets judgment upon it cannot later hold the firm. White v. Rech (1895), 171 Pa. 82, 32 Atl. 1130. Where action is based upon legal title and that is in one partner, he is proper party. Trott v. Irish (1861), 83 Mass. (1 Allen) 481. See also Law v. Cross (1861), 66 U. S. 533, 17 L. ed. 185; The Potomac (1862), 67 U. S. 581, 17 L. ed. 263.

Partner may so conduct himself as to be estopped to assert that he was acting for himself only and not for the partnership. White Mt. Bank v. West (1858), 46 Me. 15.

17 See Metcalfe v. Rycroft (1817), 6 Maule & Sel. 75; Scott v. Goodwin (1797), 1 Bos. & Pul. 67; State v. Merritt (1879), 70 Mo. 275.

18 See Gilbert V. Lichtenberg (1894), 98 Mich. 417, 57 N. W. 259.

§ 328. Actions cannot usually be brought in firm name.—As has already been noticed, actions cannot be brought by the partners in the firm name unless by virtue of a statute authorizing it. In the absence of such a statute, partners sue collectively, but as individuals. In their process and pleading it is proper, though not usually necessary, to allege that they are partners and constitute the firm named.19

In many states, however, there are now statutes authorizing suits in the firm name, either generally or where the individual names are not known at the time the action is commenced.

In a number of States, by statute, partners doing business in a so-called "fictitious" name 20 may not sue, though they may usually be sued.21

§ 329. One suing for all where partners are very numerous. -Where the partners are very numerous, as they sometimes are in joint-stock companies,-and it would be impracticable or highly inconvenient to join them all as plaintiffs, it is sometimes provided by statute, following the practice in equity, that one or more may sue for the benefit of all.22 A mere managing part

19 Where the plaintiffs would be entitled to recover as joint parties merely, the failure to allege that they were partners would be immaterial; the allegation that they were partners would be surplusage; and no issue could properly be raised respecting it. See Marx v. Culpepper (1898), 40 Fla. 322, 24 So. 59; Hyde v. Ford Co. (1894), 160 Mass. 559, 36 N. E. 585; Courson v. Parker (1894), 39 W. Va. 521, 20 S. E. 583. On the other hand, there would be cases in which an allegation of partnership might be necessary to identify the plaintiffs as the promisees in the contract sued

upon.

20 See ante § 121.

21 See Holden V. Mensinger (1917), 175 Cal. 300, 165 Pac. 950;

Schwartz v. Marcuse (1917), 175 Cal. 401, 165 Pac. 1015; Axe v. Tolbert (1914), 179 Mich. 556, 146 N. W. 418; Guiterman v. Wishon (1898), 21 Mont. 458, 54 Pac. 566; Patterson v. Byers (1907), 17 Okla. 633, 89 Pac. 1114, 10 Ann. Cas. 810; Bovee v. De Jong (1908), 22 S. Dak. 163, 116 N. W. 83; McFadden v. Shanley (1914), 16 Ariz. 91, 141 Pac. 732.

ner, however, has been held to have no implied authority, under this rule, to sue as the representative of all.23

2. In Tort.

§ 330. All partners must sue for torts affecting firm.-In actions for torts committed against the partners as such, such as trespass to partnership property, injury to its business, libels upon it, and the like, all of the partners must join as plaintiffs.24 One partner alone, therefore, cannot ordinarily maintain an action to recover damages for an injury to partnership property, i. e., he cannot recover alone for the joint injury, nor can he ordinarily recover separately for his share of the joint injury 25 Where he alone had possession, he might maintain possessory actions. There can be no recovery, on the other hand, in the action by the firm, for injuries which only affect one or more partners personally.26 Thus, for example, when suing for a libel upon the firm, the injury to the firm business is only to be recovered for in the joint action, and not the injury to the feelings of the partners personally; 27 and when suing for the

bers. But 35 are not "very numerous," i. e., so numerous that it is impracticable to join them: Kirk v. Young (1856), 2 Abb. Pr. (N. Y.) 453; nor are 40, Brainerd v. Bertram (1878), 5 Abb. N. C. (N. Y.) 102. In Chancey v. May (1722), Finch's Prec. Chan. 592, there were apparently about 800.

See also McKenzie v. L'Amoureux (1851), 11 Barb. (N. Y.) 516; Wall v. Boisgerard (1848), 11 Sm. & M. (Miss.) 574; George v. Benjamin (1898), 100 Wis. 622, 76 N. W. 619, 69 Am. St. R. 963.

59 Vt. 327, 10 Atl. 527; Medbury v. Watson (1843), 47 Mass. (6 Metc.) 246, 39 Am. Dec. 726; Forster v. Lawson (1826), 3 Bing. 452, Burd. Cas. 303.

25 See Sindelare v. Walker (1891), 137 Ill. 43, 27 N. E. 59, 31 Am. St. R. 353, Mechem's Cas. 194, Burd. Cas. 304. See, also, White v. Campbell (1893), 18 R. I. 150, 26 Atl. 40; Bigelow v. Reynolds (1888), 68 Mich. 344, 36 N. W. 95; Reed v. Gould (1895), 105 Mich. 368, 63 N. W. 415, 55 Am. St. R. 453.

26 See Calkins v. Smith (1872), 48 N. Y. 614, 8 Am. Rep. 575.

27 See Donnell v. Jones (1848), 13 Ala. 490, 48 Am. Dec. 59; Donaghue v. Gaffy (1885), 53 Conn. 43, 2 Atl. 397. Compare Collier v. Postum Cereal Co. (1912), 150 N.