Speake v. Prewitt
| Decision Date | 01 January 1851 |
| Citation | 6 Tex. 252 |
| Parties | SPEAKE v. PREWITT. |
| Court | Texas Supreme Court |
Where the plaintiff amends by the introduction of new matter, the defendant may answer the same by exception or plea, as in the first instance.
It is the well-settled general rule that all the partners must join in an action upon a contract made with the firm or to recover a debt due the firm; but a dormant partner who is not privy to the contract need not be joined. (Note 44.)
“The law as to dormant partners, it has been held, is confined to commercial partnerships;” but the decision of the case was not rested on that principle.
A dormant partner is one who participates in the profits of the partnership, but whose name is not mentioned in the firm or embraced under general terms in the firm name.
The cases in which an agent is allowed to sue in his own name are exceptions to the general rule, which requires remedies to be pursued in the names of the parties in interest; the exceptions are as well defined as the rule itself, and do not include the agency which subsists between partners, even in the case where the partner, seeking to maintain the suit in his own name, is the general agent and active business member of the firm, to whose control the whole business was entrusted.
Appeal from Cass. The appellee sued the appellant to recover the proceeds of nine bales of cotton alleged to be of the value of nine hundred dollars. The original petition contained two distinct statements of the cause of action, in imitation of counts in a common-law declaration--one upon a promise to pay to the plaintiff the proceeds of so much cotton delivered to the defendant, to be by him sold for the plaintiff; the other upon an alleged conversion by the defendant to his own use of so much cotton of the plaintiff. The original petition was filed on the 13th day of May, 1848. The defendant answered by a general demurrer and general denial, filed on the 9th day of June, 1848. On the 22d day of March, 1849, he filed an amended answer setting up special matters in defense. On the 23d of the same month the plaintiff filed an amended petition, alleging in substance that in February, 1846, he entered into articles of partnership with Elijah and Micajah Bennett, by which the parties thereto agreed to carry on a certain farm and tan-yard in partnership, each member of the firm to share and share alike in the profits arising, according to the number of hands furnished by each, “it being agreed and understood by the said partners that the said Prewitt (the plaintiff in this suit) should take charge of and control the said farm and tan-yard, and dispose of the same for the benefit of the partnership;” that the plaintiff and the said Micajah complied with their agreement by furnishing hands, &c., “and also by the plaintiffs' taking charge of the said farm and tan-yard in person, and managing and controlling the same,” but that the said Elijah failed to comply except in certain particulars mentioned, and that in consequence the farm was conducted with the capital of the plaintiff and Micajah, and by the skill, labor, and personal attention of the plaintiff; that two of the bales of cotton sued for were his individual property and the other seven bales were “under the direction and control and management of the plaintiff, as the agent of the said firm of Micajah Bennett and plaintiff, and that the said Micajah resided during the year 1846 in the State of Mississippi, and never had possession of or controlled said seven bales;” that the plaintiff was solely possessed of said seven bales for the purpose of disposing of the same; and that the defendant, knowing the said cotton to be the property of the plaintiff, with the intent to defraud him of the two bales, his own property, and to render him responsible to his partner, the said Micajah, for the one-half of the seven bales, converted the same to his own use by shipping the same and applying the proceeds to the individual debts of the said Elijah, who had departed this life.
On the 27th day of March, 1849, the defendant filed exceptions to the amended petition, assigning for special causes “that by the averments of the same the said plaintiff has no separate cause of action against this defendant, and that this defendant is not liable to be sued severally for the cause of action specified in said original and amended petitions; and further, because the original and amended petitions set up different and inconsistent causes of action.” The court overruled the defendant's exceptions to the petition.
On the trial the partnership was proved as alleged. It was also in proof that the plaintiff had the entire control of the farm, &c., for the firm; that he delivered the cotton at the warehouse of N. G. Butt & Co., of which firm the defendant was a member; that two bales of the cotton were his individual property and the balance was partnership property of the firm of G. W. Prewitt & Co., composed of the persons mentioned in the petition; that the cotton was shipped and sold by the firm of N. G. Butt & Co., and the proceeds applied by them to the payment of the accounts of E. and M. Bennett due the defendant; that E. Bennett made purchases of goods on account of the partnership, and was generally understood to be the trading member of the firm, composed of the plaintiff and the Bennetts; that M. Bennett had given his assent to his so acting, and had approved the application made of the proceeds of the cotton, and that purchases made in behalf of the firm of G. W. Prewitt & Co. had been placed to the account either of one or the other of the Bennetts. E. Bennett died in February, 1847. The court instructed the jury that the plaintiff could recover of the defendant in this action the value of the two bales of cotton which were his individual property; but that as to the seven bales, which were partnership property of the firm of G. W. Prewitt & Co., he could not maintain the action unless he was the general agent of that firm; that if the plaintiff was such general agent, and conducted the business of the firm, he could maintain the action.
There was a verdict and judgment for the plaintiff for the amount claimed in the petition, a motion for a new trial overruled, and the defendant appealed.
The assignment of errors related to the ruling of the court--
1st. In overruling the defendant's exceptions to the petition.
2d. In the instructions to the jury.
3d. In overruling the motion for a new trial.
J. H. Rogers, for appellant.
I. The first error assigned by the appellant is that the court below overruled the demurrer to the amended petition of the appellee. It clearly shows a cause of action arising out of a contract, and that there is a non-joinder of plaintiffs, for which the demurrer should have been sustained. Our practice assimilates more to that of equity that to the common-law practice. (Wheeler v. Wheeler, 3 Cow. R., 537; Story Eq. Pl., secs. 72, 236, 541.)
II. The court erred in instructing the jury. (Baker v. Brown, 21 Wend. R., 110; Butts v. Collins, 13 Wend. R., 139.)
III. The verdict was most clearly and manifestly wrong, for which a new trial should have been granted.
S. F. Moseley, for appellee.
I. Defendant's (appellant's) amended answer and demurrer were improperly filed--the demurrer, because the defendant had already previously answered to the merits of the cause, and because it was not filed in due order of pleading; (Stat. 1846, p. 371, sec. 21;) the amended answer is in the nature of a plea in abatement, and should have been sworn to. (Stat. 1846, p. 371, sec. 31.)
II. Dormant partners need not be joined either as plaintiffs or defendants. As to who are dormant partners see Story on Part., sec. 80, and authorities there cited.
III. As to the kind of agent each partner is to the others and the firm the books declare this as the rule: “It is only to act in the course of their particular trade or line of business that an authority is delegated by partners to each other, and it is only in such transactions that strangers have a right to go on the credit of the partnership funds.” (Watson on Part., 180; 16 Viner Ab., 242; 1 Salk., 126; Coup., 814; 6 Ves. Jr. R., 604; 1 Esp. Ca., 29.)
“When an agent has any beneficial interest in the performance of the contract, as for the commissions, &c., or a special property or interest in the subject-matter of agreement, he may support an action in his own name upon the contract.” (1 Chit. Pl., 8.) The non-joinder of proper parties as plaintiffs or defendants, a ground for pleas in abatement. Pleas in abatement are not permitted to be received or admitted, unless the truth of the matters...
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