M'Gehee v. M'Cord

Morphy, J., delivered the opinion of the court. The plaintiff appeals from a judgment of non-suit. He slates that having consented to endorse bills of exchange and promissory notes for defendants to a considerable amount, he received of them, by notarial act, the transfer of a certain steam saw-mill and lot of ground; that said sale was thus passed to him for the purpose of securing and indemnifying him against any. loss from such endorsements, and was intended to have the effect and operation of a mortgage; that under this agreement, his endorsements were given on their paper to the amount of twenty-four thousand and twelve dollars forty-four cents, which is now due, and for which he is liable towards the holders thereof. He prays for judgment against the defendants in solido, and for the sale of the property ; and that the proceeds may be applied to the payment of said debt. The opinion we have formed in relation to the service of the petition and citation in this case, renders unnecessary the examination of several questions which arose on the trial. The evidence shows that the firm sued here is composed of six individuals, one of whom only, to wit: John Cummings, was served with process of citation. This would have béen sufficient had the firm been a commercial one; Code of Practice, article 198. But from the articles of co-partnership, it appears that these persons became associated and adopted a firm to carry on the business of constructing the Wfest Feli-ciana Rail Road. This formed between them an ordinary and particular partnership. We think that service should have been made on each and every partner; but it is contended that the issuing of notes and bills of exchange in the name of (heir firm brought the partners under the operation 365 of tbe law merchant; at least as to their transactions with plaintiff under the guarantee, even if in relation to the undertaking of the rail road, they must be considered as special partners. To this we cannot assent. It is the dealings and business of a partnership which make it a commercial one, , . , not the form or the obligations they may contract. Engagements to pay a sum of money in this country are if not always, thrown into that form. If that alone was sufficient to stamp a mercantile character on a partnership, there would hardly exist any other here than commercial partnerships ; as to their adopting a firm, it was a matter convenience, but did not change the .nature of their associalion. 5 Martin, 682, Slocum vs. Sibley. We are asked to give judgment at least against Cummings, who has been cited and has answered; but even this, we cannot do; the liability is joint, not joint and several. All the obligors should have been made parties to the suit; no judgment can be rendered against any; Lousisana Code, article 2080. Particular JoYnt^and3 the ¡JbliJ?atl°1a,of partners jointly be'aii suedtóge-tbet> a“.d servi®e on each and everyPaitneiIt is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.