Montgomery v. Knox , 20 Fla. 372 ( 1883 )

Mr. Justice Westcott

delivered the opinion of the' court.

The principal difficulty in this case is to ascertain its precise character as presented by the bill. The plaintiffs throughout their bill repudiate the idea that the Florida Mutual Eire Insurance Association is a corporation. They expressly and repeatedly aver that the defendants, Montgomery, Miller, Means and Keep and their agents in representing that such a corporation existed made a false representation and deceived them to their damage. The ease,therefore, must be treated as one in which no such corporate existence is alleged or claimed.

Again, if the Association named was not a corporation, if this is the result of the allegations of the bill, then as a simple company nothing more than the incidents of an ordinary partnership would exist between these plaintiffs and the defendants named. Of this partnership or company plaintiffs themselves would be members to the same extent that the defendants were and their rights and liabilities would be fixed by their contract. In this aspect of the case'the demurrer would lie if for no other reason, because it is apparent upon the face of the bill and exhibits that only certain of the partners, clothed with particular powers, are made parties. The general rule is that all the members of a partnership must be parties plaintiff or defendant. The plaintiffs here have not the power to sue this unincorporated association if it be such, by making only particular officers of the association parties.

We think, however, that this must be treated as a suit by the plaintiffs against the defendants, Montgomery and others, for damage resulting from a false representation by them. If the facts existing or alleged here constitute any cause of action it is personal against these individuals and remedy is at law. As a matter of course we do not decide that they have any such cause of action. This is a question for the court of law to determine when the matter is brought before that tribunal for adjudication. We simply say that whether they have any cause of action against these defendants for damages resulting from this alleged false representation or not it is in no event ground upon which a receiver should be appointed to take charge of the effects and continue the business of “ The Florida Mutual Fire Insurance Association ” for any purpose in a suit in equity where no such corporation or the members of no such association are made parties.

For the reasons given we are constrained to reverse the decree and to dismiss the bill without prejudice generally to such proceedings as the plaintiffs may see proper to institute at law against the named defendants, or in equity against such association either as a corporation or an association.