McCaughan v. Brown

Terral, J., delivered the opinion of the court. N. L. Brown sued Harper McCaughan upon a note executed by him for §165.33, due September 1, 1896, and payable “to the order of N. L. Brown & Son.5 ’ McCaughan, by way of defense, pleaded on oath that said plaintiff had no right to maintain this suit in his own name, because said N. L. Brown & Son.was a partnership, composed of N. L. Brown and Albert Brown, and that Albert Brown died long before this suit was brought. Brown demurred to the plea, lost in the justice court, appealed to the circuit, where he had judgment, and the defendant appeals here. The defendant relies upon §§ 1909-1915, annotated code, to maintain that a surviving partner, to support a suit to collect the debts due-the partnership, must give the bond required by § 1911. This contention cannot be maintained. These sections of the code are in derogation of the common law, and must be strictly construed. At common law, upon the death of one of the partners, the firm is dissolved, the legal title to the property of the partnership vested in the surviving partner, all rights of action belong to him, and he had the exclusive right to reduce them to possession. Our code provisions interfere with the common law only when there is an administrator or executor, and he has inventoried and appraised the partnership estate, and offers to give bond for its administration, unless the surviving partner shall choose to give bond for winding up the affairs of the partnership. In such case, if the surviving partner refuses to give the bond required, the administrator or executor may qualify and administer the partnership property; but until an executor or administrator is appointed, and appraises the partnership estate, and cites the surviving partner [498] to appear and qualify, or renounce his right, the surviving partner should proceed to the collection of the debts, and to the winding up of the affairs of the partnership, as authorized and required by the common law. 17 Am. & Eng. Ene. L. (1st ed.), 1180; Holman v. Nance, 84 Mo., 677; Blaker v. Sands, 29 Kan., 393. Judgment affirmed.