Dakin v. Greer, WD

• Decision Date: 29 January 1985
• Docket Number: No. WD,WD
• Parties: Fred DAKIN, d/b/a Dakin Implement Co., Plaintiff-Respondent, v. Wendell O. GREER and Oral Ireta Greer, Defendants-Appellants. 35776.
• Court: Missouri Court of Appeals

Page 276

685 S.W.2d 276

Fred DAKIN, d/b/a Dakin Implement Co., Plaintiff-Respondent, v. Wendell O. GREER and Oral Ireta Greer, Defendants-Appellants.

No. WD 35776.

Missouri Court of Appeals Western District.

Jan. 29, 1985.

John C. Milholland, Anderson & Milholland, Harrisonville, for defendants-appellants.

Harold A. Kyser, Butler, for plaintiff-respondent.

Before TURNAGE, C.J., MANFORD, J., and MESSINA, Sp.J.

TURNAGE, Chief Judge.

Fred Dakin brought suit in small claims court against Wendell Greer and Oral, his wife, for $700 claimed to be due on the sale of a van. The small claims court entered judgment in favor of Dakin for $700. On trial de novo, the circuit court also entered judgment in favor of Dakin for $700.

On this appeal, the Greers contend they are entitled to judgment because Dakin filed suit on behalf of a partnership without naming all of the partners as parties, and because the $700 claim was included in a prior law suit. Reversed and remanded.

Fred Dakin, his wife Bertha, and son John were partners doing business as Dakin Implement Company. On August 25, 1981, the Dakins and the Greers entered into a contract by which the Greers agreed to purchase the Dakin Implement Company. The business included an automobile franchise, an implement business, and various items of personal property. The Greers deposited $4,000 in escrow, and the contract provided that if the Greers failed to pay the balance of the purchase price, the Dakins would retain the $4,000 as liquidated damages.

On August 29, 1981, the Greers purchased an eleven passenger van from Dakin Implement for $7,500. This van had not been included in the contract of sale for the business, but a van body had been included in the contract. Dakin wanted the van body back. Because he believed that the Greers would fulfill their contract and thus become the owners of the van body, he agreed to credit the Greers $700 on the van purchase in exchange for their returning the van body to him.

Subsequent to purchasing the van, the Greers defaulted on their contract to purchase the business, and the Dakins brought suit on the contract. The court dismissed this suit after it found that the Dakins were entitled to retain the $4,000 as liquidated damages, but were not entitled to additional damages.

Subsequent to the first suit, Fred Dakin brought this suit in small claims court as "Fred Dakin d/b/a Dakin Implement Co." to recover the $700 he had credited to the Greers on their purchase of the van. Dakin testified the partnership made the sale, and the pleading in this case alleges as much.

The Greers contend that the judgment should be reversed because all partners are necessary parties-plaintiff in an action to enforce an obligation due the partnership. The rule is stated in Wittels v. Dubinsky, 343 S.W.2d 644, 645 (Mo.App.1961):

The general rule relating to actions to enforce an obligation due to a partnership is that all partners are necessary parties-plaintiffs, and that a partner may not sue in his own name on a cause of action accruing to the partnership.

Anable v. McDonald Land & Mining Co., 144 Mo.App. 303, 312-13, 128 S.W. 38, 41 (1910), provides the rationale for this rule. Because one partner can release and satisfy a claim due the partnership, and could do so before or after suit were filed, it would be wholly unavailing to allow only one partner to file suit on a claim which a non-party partner could satisfy and thereby render the suit moot.

In 60 Am.Jur.2d Partnership § 325 (1972) it is stated:

Since partnership obligations in contracts are joint, and not joint and several, it is necessary, under common-law practice, that is, where partnerships cannot sue and be sued as such, that all the partners join as parties plaintiff in an action on a partnership obligation.

It is thus clear that one partner may not sue alone on an obligation due the partnership. To properly plead a cause of action, not only must the complaint state facts which demonstrate a right to relief, but the complaint must also show that a right of action is vested in the plaintiff, and the failure to plead facts showing a right of action in the plaintiff results in the petition failing to state a cause of action. Elmer v. Copeland, 141 S.W.2d 160, 164[4, 5] (Mo.App.1940), cert. quashed, State ex rel. Elmer v. Hughes, 347 Mo. 237, 146 S.W.2d 889 (1941); Justus v. Webb, 634 S.W.2d 567, 570 (Mo.App.1982). Here, Fred Dakin brought suit as "Fred Dakin d/b/a Dakin Implement Co.," without pleading that the cause of action was vested in him alone. The evidence revealed that Dakin, his wife, and his son were the partners in Dakin Implement. Fred Dakin could not bring an action for an obligation due the partnership in his own name, and this resulted in the petition failing to state facts upon which relief could be granted.

The Greers raised the defense of failure to join all the partners as plaintiffs for the first time on appeal. Dakin contends that this defense cannot now be raised because it was not presented...