Williams v. Southern Pacific Railroad

Action to recover compensation for certain paving and other street work which plaintiff alleged was done by him at defendant’s request. The answer consisted of denials of the material averments of the complaint. The trial was before a jury, and the verdict and judgment were in plaintiff’s favor for the amount of the alleged value of the work.

1. It was disclosed in the course of the evidence for plaintiff at the trial that the contract for the work was made orally between one Haley, the agent of defendant, and the plaintiff Williams—the latter acting, however, as was known to defendant, on behalf of a copartnership composed of Williams and two others, having no firm name, but carrying on business together and sharing its profits; the work in question was done by the firm at the joint expense. Thereupon defendant moved the court for judgment of nonsuit on the ground that plaintiff could not individually maintain the action upon a contract made with and performed by the partnership; which motion was denied.

There is no doubt that at common law all the members of a partnership, except dormant or merely nominal partners, must be joined as plaintiffs in an action of this character,…