Elder v. Tucker

West Virginia Supreme Court

Elder v. Tucker

178 S.E. 629, 116 W. Va. 94, 1935 W. Va. LEXIS 23

CourtWest Virginia Supreme Court

DecidedFebruary 19, 1935

DocketCC 523

StatusPublished

This text of 178 S.E. 629 (Elder v. Tucker) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Elder v. Tucker, 178 S.E. 629, 116 W. Va. 94, 1935 W. Va. LEXIS 23 (W. Va. 1935).

Pincite

Opinion

Woods, Judge:

This certificate involves the sufficiency of a notice of motion, a demurrer thereto having been sustained.

The plaintiff, by his motion, seeks to recover a joint and several judgment against twenty-seven individuals, as members of a mining partnership, for labor performed in cleaning *95 out and sinking to a greater depth, a certain oil well. He alleges that the labor was performed under a contract with S. G. Moyer, one of, and agent for, defendants, under a certain power of attorney. The power of attorney, which, upon oyer being craved, was exhibited and made a part of the motion, is signed by thirty-two individuals, including the plaintiff and the several defendants herein, each having a one thirty-second interest in the leasehold upon which the well was located.

It is a general rule that one partner cannot sue his co-partner, or co-partners at law, for any debt or demand towards which he must ultimately contribute. 47 C. J. 825; 20 E. C. L. 924; Note, 21 A. L. R. 21, 48. To permit this to be done, unless the undertaking by the promisors was by them as individuals, so that the contract was a personal one, amounting to a private undertaking separate and distinct from the partnership, would present the anomaly of a single individual acting as both plaintiff and defendant in the same action. Wright v. Michie, 6 Gratt. (Va.) 354, 357. The notice of motion is based on the power of attorney, to which plaintiff, himself, is a party. Under it the signers became a mining partnership. Childers v. Neely, 47 W. Va. 70, 34 S. E. 828. The notice of motion does not aver that plaintiff has at any time ceased to be a partner in the development of the leasehold. Nor is it shown by such pleading that an accounting will not be necessary to a determination of plaintiff’s rights. Knopsnyder v. Quinn, 68 W. Va. 577, 70 S. E. 363. The demurrer was therefore properly sustained.

Ruling affirmed.

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Woods, Judge:

This certificate involves the sufficiency of a notice of motion, a demurrer thereto having been sustained.

The plaintiff, by his motion, seeks to recover a joint and several judgment against twenty-seven individuals, as members of a mining partnership, for labor performed in cleaning *95 out and sinking to a greater depth, a certain oil well. He alleges that the labor was performed under a contract with S. G. Moyer, one of, and agent for, defendants, under a certain power of attorney. The power of attorney, which, upon oyer being craved, was exhibited and made a part of the motion, is signed by thirty-two individuals, including the plaintiff and the several defendants herein, each having a one thirty-second interest in the leasehold upon which the well was located.

It is a general rule that one partner cannot sue his co-partner, or co-partners at law, for any debt or demand towards which he must ultimately contribute. 47 C. J. 825; 20 E. C. L. 924; Note, 21 A. L. R. 21, 48. To permit this to be done, unless the undertaking by the promisors was by them as individuals, so that the contract was a personal one, amounting to a private undertaking separate and distinct from the partnership, would present the anomaly of a single individual acting as both plaintiff and defendant in the same action. Wright v. Michie, 6 Gratt. (Va.) 354, 357. The notice of motion is based on the power of attorney, to which plaintiff, himself, is a party. Under it the signers became a mining partnership. Childers v. Neely, 47 W. Va. 70, 34 S. E. 828. The notice of motion does not aver that plaintiff has at any time ceased to be a partner in the development of the leasehold. Nor is it shown by such pleading that an accounting will not be necessary to a determination of plaintiff’s rights. Knopsnyder v. Quinn, 68 W. Va. 577, 70 S. E. 363. The demurrer was therefore properly sustained.

Ruling affirmed.

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Bluebook (online)

178 S.E. 629, 116 W. Va. 94, 1935 W. Va. LEXIS 23, Counsel Stack Legal Research, https://law.counselstack.com/opinion/elder-v-tucker-wva-1935.

Opinion

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