Marvil Properties v. Fripp Island Development Corp.

258 S.E.2d 106, 273 S.C. 619, 1979 S.C. LEXIS 468

Opinions

Lewis, Chief Justice:

An agent for respondent Marvil Properties (Marvil) (a general partnership) entered into a contract, in the name of the partnership, with appellant Fripp Island Development Corporation (Fripp) for the sale by Fripp to Marvil of certain real estate. This action for specific performance of the sales agreement was brought by Marvil in the partnership’s name without naming the partners. Demurrer was interposed to the complaint on the ground, among others, that the plaintiff does not have legal capacity to sue. This appeal is from an order overruling the demurrer.

The dispositive question to be decided is whether a general partnership has the capacity to sue in its name.

South Carolina has long adopted the rule that a partnership is not such a legal entity as to authorize it to sue or be sued as such. Smith and Melton v. Walker, 6 S. C. 169, Lookout Mountain Medicine Company v. Hare & Co., 56 S. C. 456, 35 S. E. 130.

The foregoing rule was confirmed in the 1969 decision of White v. Jackson, 252 S. C. 274, 166 S. E. (2d) 211, and no decision of this Court has been found, or cited, to sustain the conclusion that a partnership may sue or be sued in the partnership name alone.

1 The statement in Chitwood v. McMillan, 189 S. C. 262, 1 S. E. (2d) 162, that “A partnership under the law is an entity, separate and distinct from the persons who compose it,” does not, as argued, support the conclusion that a partnership may sue in its name. This principle has been applied solely in determining the legal relationships and liabilities of the partners, and has never been construed in this State as permitting a suit only in the-partnership name.

Neither have legislative enactments in this State changed the principle that a partnership may not sue or be sued as such. On the contrary, the Uniform Partnership Act is not only silent on the subject, but leaves the foregoing rule in effect by specifically providing that, in any case not covered by the Act, “the rules of law and equity, including the law merchant, shall govern.” Section 33-41-50, 1976 Code of Laws. The lower court should have sustained the demurrer. Judgment is accordingly reversed.

Ness, Rhodes and Gregory, JJ., concur. Littlejohn, J., dissents.