Hughes v. Walker, Carter, & Co.

4 Blackf. 50, 1835 Ind. LEXIS 25

Opinion

Blackford, J.

An action of assumpsit was brought before a justice of the peace, in the name of Walker, Carter, & Co., as plaintiffs, against Hughes. The judgment of the justice is, “That the plaintiffs have judgment against the defendant for 27 dollars, with costs.” Hughes appealed to the Circuit Court. The judgment in the Circuit Court is, “ That the plaintiffs recover of the defendant the sum of 28 dollars in damages* with costs.” '

D. H. Colerick, for the plaintiff. H. Cooper, for the defendants.

The only evidence in the cause was, that the firm of Walker, Carter, & Co., in the name of which firm the suit was brought, was composed of four persons, to wit, George B. Walker, Chancy Carter, Joseph Holman, and Anthony L. Davis, and that the defendant had executed the note on which the suit was founded.

The defendant moved the Court to dismiss the cause, on the ground that it was brought in the name of the firm, when it should have been brought in the names of the individuals composing the firm. This motion wás overruled.

There can be no doubt but that the suit ought not to have been sustained. The right to sue, if there was any, was in four persons, and the action was brought by two of them only; and even the Christian names of those two are not mentioned. The plaintiffs supposed that they might sue in the name of the firm. That, however, was a mistake. An unincorporated company can only sue in the names of the individuals who compose the company. 1 Chitt. Plead. 12

(1).

There is another ground on which the judgment must be reversed. The record does not show that there was any note or any thing else filed to show the cause of actionl But even supposing a note payable to Walker, Carter, & Co. had been filed, that circumstance would not have been sufficient. The statute authorising a note to be filed as the statement of demand, cannot, intend that a note shall, of itself, be- a sufficient statement in cases like the present, where the note does, not show the names of the persons to whom it is payable. If the suit had been brought by the persons composing the firm, and the note had been-filed with a suggestion on record, that the promise was made to the plaintiffs, by the name of Walker, Carter, & Co., the objection here noticed would not have existed (2).

Per Curiam.

The judgment is reversed with costs. To be certified, &c.

Hays et al. v. Lanier et al. Vol. 3 of these Rep. 322, and note.—Davis v. Hubbard & Co., the present term, ante.

Vide Evans et al. v. Shoemaker,Vol. 2 of those Rep. 237.—R. Code, 1831, p. 301.—Vandagrift v. Tate et ux., Nov. term, 1836.—Rev. Stat. 1838, p. 367, 368. As to the cases commenced in tho Circuit Court, in which a declaration may be dispensed with, vide Taylor v. Meek, ante, p. 41. Rev. Stat. 1838, p. 458.