O'Brien v. Gilleland

COLLARD, Judge. Where one member of a copartnership dies the partnership is at once dissolved, and the survivor can no longer carry on the firm business unless it may be where the articles of copartnership expressly so stipulate. Alexander v. Lewis, 47 Texas, 482. The power of the survivor is to wind up the business, collect the assets, reduce same to possession, and pay the debts. He can sue upon debts due the firm, and do all things that the firm could do before dissolution for the purpose of settling up the copartnership affairs. Fulton v. Thompson, 18 Texas, 278; Pars. on Part., top pp. 479, 480. O’Brien then had the right to sue as surviving partner of the firm of O’Brien & John for the amount due for services rendered by the firm up to the death of John on the contract set up in the trial amendment; and we see no reason why he could not also sue in the sanie action for what might be due him individually for such services as he rendered in the performance of the same contract after the death of his partner, it being alleged that defendants after the death of John still recognized O’Brien as-their agent in the premises. It would be a remarkable rule that would require two actions for the breach of the same contract. The averments [604] of the petition and the trial amendment show that the right of action is in the firm as such and in O’Brien individually for the services rendered under the contract. Ic was proper in such case to join as plaintiffs the firm and the individual. Stachely v. Peirce, 28 Texas, 328. It is true O’Brien could not join in this action by the firm another action on a claim due him individually and in no way connected with the contract for the sale of the land; but here the firm and the individual are jointly interested in the one action, in the one breach of contract. The matter should not have been split into two suits. Adopted February 17, 1891. “There is no doubt,” says Judge Hobby, “that the authorities are that where an agent employed to sell land complies with the contract of employment and the owner refuses without sufficient reason to fulfill the agreement the agent has made with the party desiring to purchase, if such party be able, willing, and ready to purchase, the agent has a right to demand compensation, to be regulated either by the terms of the contract, or by established usage in such cases if there be no contract.” De Cordova v. Bahn, 74 Texas, 645; Harrell v. Zimpelman, 66 Texas, 293. The original petition and trial amendment set up the essential elements of a good cause of action in this character of suit—good, at least, upon general demurrer. The power'of the executors to sell the land of the estate, and hence to make the contract with agents to sell, is not alleged as a distinct proposition, but we think with sufficient definiteness to be good on general demurrer. It is alleged that defendants are executors of the will of Andrew Armstrong “ independent of the control of the County Court.” It was also alleged that there was no restriction in the contract as to the sale of the lands “ save that it was requested by defendants that they should be sold as soon as practicable for cash, as provided by the will of defendant’s testator, at a fair price,” etc. We think the court erred in sustaining the general demurrer to the trial amendment and dismissing the case, and for this error the judgment ought to be reversed and remanded. Reversed and remanded.