Westbrook v. Griffin

Sherwin, J. — This is a suit in equity brought by D. IT. Westbrook and J. H. Letts for themselves and a large number of unnamed persons, all of whom it is alleged constitute the membership of a voluntary unincorporated association known as the Muscatine & Louisa Counties Mutual Telephone Company, and for Henry Hendrix, and H. IT. Westbrook, who are members, with the defendants, of an independent voluntary unincorporated telephone company, known as “ Line No. 46.” The petition alleges that the Muscatine & Louisa Counties Mutual Telephone Company was organized for the purpose of providing and maintaining a central switchboard for the accommodation of the several independent companies connected therewith. It is further alleged that independent line No. 46 entered into an agreement with the Muscatine & Louisa Counties Mutual Telephone Company by the terms of which it bound itself to maintain connection therewith for a period of ten years, and to pay, during all of said time, its proportionate share of the expenses of said company; that the Muscatine & Louisa Counties Mutual Telephone Company entered into a contract with the Mississippi Valley Company for long distance service for a period of three years; that the defendants, a majority of the members of Line No. 46, without the consent of the said Henry Hendrix and H. H. Westbrook, and without the assent of the members of the other independent lines connected with the Muscatine & Louisa 187 Counties Mutual Telephone Company, and in violation of their contract, have severed their connection with the switchboard of said Muscatine & Louisa Counties Mutual Company and have connected with the Iowa Telephone Company, and have refused to pay their share of the expenses of the former company. The plaintiffs ask that Line No. 46 be compelled to make and maintain connection with the switchboard of the Muscatine & Louisa Counties Mutual Telephone Company, and that the members of said Line No. 46 be compelled to pay an assessment for expenses alleged to have been incurred by the last-named telephone company, and be ordered to respect the rights of Henry Hendrix and H. II. Westbrook and pay the damages they have sustained by reason of their acts. The appellees plead and now urge that the plaintiffs cannot maintain this action because they have not the legal capacity to sue in the form in which it is brought, while the appellants take, the position that an unincorporated society organized for business or commercial purposes is a partnership that is liable on its contracts, and that may sue and be sued. As an abstract proposition the appellants’ contention is undoubtedly correct. 25 Am. & Eng. Enc. of Law, 1130, and eases cited (2d Ed.). But aside from the aleged interests of Henry Hendrix and H. H. Westbrook as members of Line No. 46, the plaintiffs do not sue as partners or persons jointly interested. The entire effect of the petition is that they are suing for an unincorporated society, and we have held that a suit of such character cannot be maintained. Pipe et al. v. Bateman et al., 1 Iowa, 369; Drake v. Board of Trustees, 11 Iowa, 54. As we understand the record, neither Hendrix nor H. H. Westbrook are named as parties to this suit, and the question arises whether' the plaintiff may maintain this action for them against .their copartners. We think not. Code, section 3459, provides that every action must be prosecuted in the name of the real party in interest, except “ that a party 188 with whom or in whose name a contract is made for tbe benefit of another may sue in his own name.” As we have already said, the plaintiffs cannot maintain an action for the unincorporated association, nor can they maintain an action for the two.parties named because of their connection with the Muscatine & Louisa Company, hence they are not within the exception made by the statute, and appear as parties plaintiff having no possible interest in the action. The judgment dismissing the petition is right and it is therefore affirmed.