37 Tex. 589 | Tex. | 1873
Henry J. Muller instituted this suit in the firm name of H. J. Muller & Co., but failed to set out the name of any member of the firm, other than his own. There was a judgment for the plaintiff, but upon motion by defendant a new trial was awarded. The plaintiff then amended his pleadings, setting out the names of the two other members of the firm, but claims in effect that they were dormant partners of the firm of H. J. Muller & Co., and that he had the entire control and management of the business. This was a mercantile firm, doing business in the city of Hew Orleans. There was another tidal and judgment for the plaintiff, and the defendant has appealed.
The most material question presented in this record is, are dormant partners of a mercantile or commercial firm, necessary parties to suits brought by that firm % This question was carefully considered, under the light of all the authorities, in the case of Speak v. Prewitt, 6 Texas, 256, and in the ease of Jackson v. Alexander, 8 Texas, 112, the latter being a case quite parallel to the one at bar, in which it was held to be “well settled that a dormant partner, not privy to the contract, “ need not be joined with the ostensible contracting party, in “ actions like the present,” and we think we are fully authorized in applying that doctrine to this case. The authorities referred to in appellant’s brief are not applicable to the facts of this case. The appellees were a commercial firm, composed of one ostensible, active, and managing and controlling member, Henry J. Muller, and two silent or dormant partners, who may have known nothing of the business of the firm, particularly with appellant; and the doctrine of dormant partners would seem to apply with peculiar fitness to this case. This
Affirmed.