L. P. Waite & Co. v. Dodge

34 Vt. 181 | Vt. | 1861

Aldis J.

The defendants claim that the' plaintiffs can not recover any portion of their accounts, because A. W. Pierce was an active partner of the plaintiffs’ firm when the first part of the account accrued, and should have been joined in a suit on that portion of the account ; and that A.’L. Waite, one of the plaintiffs, was not a partner when the rest of the account accrued, and therefore that a suit for that part of the account should be in the name of L. P. Waite alone.

1. We think A. W. Pierce is to be regarded as a dormant partner. “ His name was not known or used in the business of the firm.” This we think means more than that his name did not appear in the firm, — it is that his name was not known in the business of the firm. ' He may have aided in doing the business of the firm and yet not have been known as a partner, but only as a clerk or agent. If a dormant partner, the suit as to so much of their account as accrued while he was partner is well brought. The balance due on such portion of the account to the plaintiffs appears from the report to be two dollars and one cent. The plaintiffs account being $237.09, and the defendant’s $235.08.

The remainder of the account appears to have accrued after both Pierce and A. L. Waite left the firm. Pierce was a dormant partner, but it would appear from the report, though it is not very clearly stated, that A. L. Waite was an actual, ostensible and known partner in the firm and that he remained as a nominal partner after he had actually retired from the firm. If he is to be treated as a nominal and ostensible partner when the last part.of the account accrued, we think the action properly brought in his name, — though he has no interest in the account. It was once a matter of much doubt whether such a partner must not be joined. 1 Chitty’s Pleadings, p. 12. 2 Campb. 302.

More recent decisions have established the doctrine that he need not be joined in the suit. 10 B & C. 20. 1 O. & P. 89. 1 Oh. PI. 12. That he should be joined at all, having no real interest, would seem to be inconsistent with legal principle. But the alleged reason for joining him seems to be, that being a nominal partner the contract is nominally, and in the contemplation of law, made with him as one of the firm. The principle is recognized in 9 Vt. 109, Lapham v. Green.

It would seem therefore that there was no fatal misjoinder in bringing the suit in the names of A. L. Waite and L. P. Waite as partners, — and that the balance of the account may be recovered in the names of the plaintiffs.

The judgment of the County Court, therefore, should be reversed and judgment for the plaintiff to recover the sum of $53.92, being the balance found due the plaintiffs on account, (omitting the sum of $44.71,) with added interest and costs.

Judgment reversed.