McCord v. West Feliciana Rail Road

Bullard, J. The defendants relied, in the court below, on the following exceptions, which were pleaded in limine litis. 1. That the plaintiffs cannot maintain the action under the name and style of Isaac McCord and Company, because the name in the articles of partnership is McCord and Company. 2. That there were other parties to said contract, who have not been made parties to this action. 3. That the partnership was a special one, and was dissolved by the death of Hopkins ; and no action can be maintained in the name of the late firm. 4. That the petition is vague, uncer [521] tain, and contradictory. 5. That the damages are not specially set forth, and that only special damages can be recovered. 6. The death of Harralson, curator of one, of the parties, since the inception of the suit. The second and fourth exceptions having been sustained, and the suit dismissed, the plaintiffs appealed. I. The names of the plaintiffs are set forth, and whether they call themselves Isaac McCord and Company, or McCord and Company, is not material. II. The record shows, that all the persons who entered into the original contract with the defendants, are plaintiffs in this action. If other persons became interested afterwards, it does not appear that it was with the privity of the defendants, and they can have no direct action upon the contract. The action was well brought, in the names of the original contracting parties. III. Admitting that the partnership was dissolved by the death of Hopkins, it does not follow that the parties, and their legal representatives, could not maintain this action. IY and Y. The petition appears to us to set forth the cause of action, with sufficient certainty. VI. The death of the curator of one of the original contractors, pendente lite, does not appear to us a sufficient cause for dismissing the action. The heirs, or other legal representatives, might well come in, and prosecute the suit. We conclude that the court erred in dismissing the suit. It is, therefore, adjudged, that the judgment of the District Court be reversed, and that the cause be remanded for further proceedings according to law; the defendants paying the costs of this appeal.