Rugely, Blair & Co. v. Gill , 15 La. Ann. 509 ( 1860 )

Land, J.

This suit was commenced for the recovery of money paid by the plaintiffe, as accomodation acceptors of the defendant’s draft; for the recovery of attorney’s fees, interest and commissions, and to enforce a mortgage given by defendant to plaintiffe as a security for the reimbursement of the whole or any part of the draft that plaintiffe might be compelled to pay out of their own funds.

The suit was brought in the names of Rugely and Rochelle, as commercial partners, formerly doing a commission business under the firm, name and style of Rugely, Blair & Co.

The defendant filed an exception to the plaintiffs’ petition, on the ground that all the members of the firm of Rugely, Blair & Co. had not been joined in the action as co-plaintiffs, and prayed that the suit be dismissed.

No evidence was offered by the plaintiffs on the-trial of the exception; it was overruled; and from a judgment oil the merits against the defendant, be has prosecuted this appeal, and in this court insists, that the Judge below erred in overruling bis exception.

It is the opinion of the court, that the onus probandi was on the plaintiffs to establish the fact, that they alone composed the firm of Rugely, Blair & Co., because the name of “Blair," used in the style of tho firm, implied that he was a real person, and a partner in interest in the concern; and if so, he should have been joined as a party plaintiff in the action. But if the name of “Blair," in the style of the firm, were a mere fiction, then the fact should have been proved by the plaintiffe, because they were not only more cognizant of the fact, but the evidence of it, perhaps, was in their exclusive possession. The burden of proof is on the party who has to support his case, by proof of a fact of which he is supposed to be most cognizant.

It is further our opinion, that the defendant was not bound by the rules of pleading, to state in his exceptions the name- of the partner who had not been joined in the action, for the reason, the style of the firm name, in which the plaintiffs sued, shows a prima facie case of the existence and non-joinder of a real and necessary party to the suit, that is to say, the existence of “Blair," as a co-partner of the plaintiffs in the firm of Rugely, Blair & Co.

As the question as to the burden of proof might have admitted of some doubt, wo will remand the cause.

It is, therefore, ordered, adjudged and decreed, that the judgment be reversed, and the cause remanded to the lower court for a new trial on the exception for the want of proper parties, and for further proceedings according to law, and that plaintiffs pay the costs of this appeal.