OF THE STATE OF ARKANSAS. 59 LITTLE PHILLIPS AND SECURITY against PENNYWIT. ROCK. Ian'y 1838 IN ERROR, from Pulaski Circuit Court. ..derv—qtad PHILLIPS 118. It a general rule that all actions upon contracts, whether expressed or im- PENNYW1T. 18 plied, by parole, under seal or of record, must be brought in the name of all parties legally interested. Nonjoinder of a party plaintiff who ought to be joined, is good cause of demurrer, or fatal on arrest of judgment or in error, may be pleaded in abatement or is ground of non-suit. The same principle applies to part owners of a ship : they are partners as to freight. Dormant partners need not join. Nor infants, nor nominal partners. Where one partner represents himself as acting on his own account, and the firm sue, they will be non-suited. The party with whom the contract has been expressly made, may alone maintain the action, though others may be interested. Where all the contracts of a vessel and all its transactions are carried on in the name of one part owner, he may sue alone: the other part owner is merely a dormant partner. This was originally an action on an account for freight due by Phillips to the steamboat Neosho, brought before the Justice, by and in the name of Pennywit, owner of the steamboat Neosho. Judgment being rendered by the Justice for Pennywit, Phillips appealed to the Circuit Court. In the Circuit Court it appeared upon the trial that an individual named Yeatman, not a party to the suit, was part owner of the boat with Pennywit, and beneficially interested in the event of the suit, but that the business of the boat was managed solely by Pennywit ; all her contracts made by him, and that she was entered in port in his name. On this state of case, the plaintiff in error moved the Circuit Court to nonsuit the plaintiff there, for nonjoinder of Yeatman, as a party plaintiff. This motion the Circuit Court overruled, and gave judgment for Pennywit, for the amount of the account. Cumsnus and PIKE, for the plaintiffs in error: No principle of law is more clearly settled than the one here brought up for consideration, to wit, that nonjoinder of a party plaintiff who ought to be joined, is fatal in every stage of the proceedings, in arrest of judgment or on error. See 2c1 Wheaton's Selwyn, p. 867-8. It is clear that Yeatnian was a partner of Pennywit, and as being part owner of the said boat, beneficially interested in the result of this suit. See also 1st Chitty on Pleading, p. 7, 8; 1 Johns. Rep. 122, Bird and others v. Pierpoint, and 2 Saunders on Pleading and Evidence, p. 702, 706; Story's Pleading, p. '20, 88; 5 Burr, 2611; 1 Bos. 71; 6 T. R. 369; 2 Str. 819; 1 Sid. 238; 1 Saund. 154, X 1, 291 f.; 2 Str. 1146. Part owners of a ship are not excepted from the .general rule: Story, 88;
60 CASES IN THE SUPREME COURT LITTLE 3 Lev. 354; 1 Salk. 32; Sir. 820; Show. 189; Carth. 170; 1 Saun-ROCK, '.Ian'y 1338. ders, 291, notes; Abbott on Shipping, 81, 82. ramazirs It is clear that the judgmeut in the court below in favor of Penny-vs. PENN y urrr. wit, would by no means release the defendants below from the demand of Yeatman. See Story, 20; 6 Mars. Rep. 460; 7 T. R. '279. It may be said, as in the court below, that Pennywit, being master of said boat at the time the contract arose, had the right to sue alone, and the principles of maritime law will be claimed as applying to the present case. The plaintiff in error denies the position. This is an action brought in a common law court, and by the rules of common law it must be decided. Again, if Pennywit would sue alone, he should have sued as master. When he sued as owner, he showed that he claimed in a character in which he did not stand alone in the suit, and the rule of law heretofore mentiOned applied. Were Pen-nywit and Yeatman partners? They were joint owners ; they were interested and participated in the profits of the boat. lt is not necessary to a legal partnership that it should be confined to commercial business. Sec 3d Kent, 6, 7. It has never been doubted that part owners of a vessel were partners, so far as regards the freight and cargo. The case of Nicoll 81 Vandewater vs. Muntford, 4 Johns. Ch. Rep. 523, settled that point, and decided that they were tenants in common of the vessel, but partners as to freight and cargo. This is an action to recover freight. See also 5 Vcsey, 575. And this case, overruling as it did the doctrine of Lord Hardwicke, in 1 Vesey, 497, was afterwards overruled in the Court of Errors of : New York; 20 Johns. Rep. 611, and opinion of Ch. Justice SPENCER, in that case; 3 Kent, 16, 17; 12 Mars. Rep. 54. TRAPNALL and COCKE, contra: This case presents but one question for the consideration of the court, and that is, whether the Circuit Court erred in overruling the defendant's motion for a nonsuit, predicated on the ground that a party was not joined . as plaintifi; who by the law of the land ought tO have been joined. Although the bill of exceptions shows that the appellee proved Yeatman was at the time the cause of action accrued, and at the time of bringing suit, a part owner of this boat with Pennywit, and beneficially interested as such in the event of this suit, yet it also shows that Pennywit was master of the boat, and that Yeatman, although ayart owner, was a dormant partner, and had no agency in the transactions of the boat; and that the boat was entered 'in port in the name of Pennywit, and
OF THE STATE OF ARKANSAS. 61 all its contracts made, and writings entered into, in his name. The LITTLE ROCK, rule of law is well settled that dormant partners need not be joined. J"'Y 1838. •.10.","st..0 See 1st Chitty's Pleading, p. 7; 1st Saunders' Reports, p. 291, note h.; 111ILRIP8 3d Starkie on Evidence, p. 1070, marg.; 1 Comyns' Digest, 48. Pgionrenv. Besides, Pennywit was master of the boat and had a right, as such, to carry on its transactions and institute suits in his own name, and did do so. LACY, Judge, delivered the opinion of the court; the Chief Justice absent: This suit was originally commenced before a Justice of the Peace, upon an open account. Judgment was rendered in favor of Pennywit, from which Phillips appealed to the Circuit Court. On the trial before that court, the appellant moved as in case of a non-suit, but the court overruled the motion; which opinion was excepted to, and this writ of error prosecuted to reverse the judgment below. The bill of exceptions contains all the evidence adduced on the trial, and the assignment of errors questions the correctness of the decision of the Circuit Court, in overruling the dekendant's motion as in case of a nonsuit. The proof is, that at the time the cause of action accrued, and of bringing the suit, Yeatrnan was part owner with Pennywit in the steamboat Neosho, and as such owner, beneficially interested in the event of the suit; but that Pennywit was the master of the boat, and it was entered in port in his name, and all its transactions, 'contracts, and writings were carried on by Pennywit alone, and in his name. It is said that as the suit is for freight, it cannot be maintained in Pennywit's name alone, for Yeatman is part owner of the steamboat with him, and ought to have joined in the action. In general, all actions upon contracts, whether express or implied, or whether by parole, or under seal, or of record, must be brought in the name of the parties legally interested ; and a failure to join them is good cause of demurrer, in arrest of judgment, or on writ of error; or it may be taken advantage of by plea in abatement, or is ground of nonsuit on the trial upon the general issue. 1 Chitty Pl. 28; 1 Saunders 153; 2 Strange, 1820; 2 Starkie, 424. This principle holds good as to joint or part owners of a vessel or ship, and as to partner& in its freight. Abbott on Shipping, 81, 82. There are, however, many exceptions to the rule. All ostensible partners of a firm, who have a legal interest in the contract, must join in the action; but dormant partners, though legally interested in thc event of the suit,
62 CASES IN THE SUPREME COURT LITTLE need not join; neither is an infant or nominal partner required ROCK, to Jan 'F18s8. join. It has been held in the case of Myers vs. Edge, and George vs. PHILLIPS Clagget and another, reported in 7 Term Rep. 137, 202, and 361, that VS. PENNTWLT. if one partner represents himself as acting on his own account and the firm sue, they will be nonsuited; and LORD KENYON, in Leavick vs. Shafton, 2c1 Esp. N. P. 468, refused to nonsuit the plaintiff; though it appeared upon the trial that one of the parties whose name was not joined in the action, was legally interested in the contract at the time it was entered into; but that fact was not known to the defendants. 1n the case of Loyd vs. Archibold, 2 Taun. 324; 6 Ves. 438, it is expressly decided that the nonjoinder of a dormant partner whose name appears not to be held out to the world, is not matter of non-suit; and Starkie lays it down, 1070, that the parties with whom the contract has been expressly made, may alone maintain the action, although it turn out that another person, whose name is not mentioned, is secretly interested. 3 Greenl., Bastow vs. Gray, 409. The question then recurs, is Yeatman an ostensible or dormant partner with Pennywit, in the boat? It is true he is a joint owner, and as such interested in the freight and cargo; but all the contracts of the firm, and all its transactions were made alone by Pennywit, and carried on in his name, and he presents himself as the sole and ostensible partner in the management of all its concerns. Yeatman is not held out to the world as an ostensible, but as a dormant partner, and therefore the action is rightly brought. Where it appears that the name of a person is not held out to the world as one of the members of the firm, he need not be joined as co-plaintiff in the action. This principle has been repeatedly and expressly recognized in the Court of King's Bench. 1 Starkie 25, Glassop vs. Colman; and LORD MANSFIE LD has even gone further and declared that if a factor deliver goods on his own account, and conceals his principal's name, and an action be brought by the principal against the buyers, that they will be allowed an offset for any demand they may have against the factor. Bailey vs. Morley, in London, Sittings 1788. The proof set out shows that Pennywit was not only the ostensible partner of the firm, but that he represented himself as such, and that all its contracts and accounts were made solely and alone in his name; and consequently the Circuit Court rightly overruled the defendant's motion as in case of nonsuit. The judgment must therefore be affirmed, with costs.
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