Halliman v. Clark

The judgment of the court was pronounced by Kino, J. Clark executed an obligation in favor of McReynolds, Halliman Sf Co., a firm composed of McReynolds, Halliman and Riley, for the payment of the price of constructing a levée, and the defendant Downes became the guarantor of Clark for the performance of the obligation. Upon this contract Halliman and the administrator of McReynolds instituted the present action to enforce payment. The defendants excepted to the petition for the want of proper parties, averring that Riley should have been joined in the action. An amended petition was thereupon filed, setting forth that Riley was a partner of the firm of McReynolds, Halliman Co., and making him a party plaintiff. The defendants then pleaded to the merits. On the trial the attorney of the plaintiffs was examined as a witness. He deposed that he had never seen Riley, or been authorized by him to join him as a party plaintiff in the shit. That the amended petition was presented in con [180] sequence of the exception filed by the defendants, that the object of the witness was t0 collect the sum due for the use of ITalliman, who was the holder, and, as he believed, the exclusive owner of the demand. The district judge instructed the jury that the plaintiffs woro properly before the court, and a bill of exceptions was taken to that part of his charge. There was a verdict in favor of the plaintiffs, and, after an ineffectual effort to obtain a new trial, the defendants appealed. The district judge, in our opinion, erred in his instructions to the juiy. It has been repeatedly held that, when the obligation is in favor of a firm, all the partners must join in the action to enforce its performance. Crozier v. Hodge, 3 La. 357. Cutler v. Cochran, 13 La. 484. Flower v. O’Connor, 7 La. 196. As the plaintiff's however are not without remedy, bpt may still make Riley a party, by causing him to be represented by a curator ad hoc, we will remand the cause, which justice appears to us to require. The judgment of the District Court is therefore reversed, and the cause remanded to be proceeded with according to law, the appellees paying the costs ¡of this appeal.