Hall, Judge,
dissenting. I dissent from Division 2 of the majority opinion for two reasons. First, the principle of the nonjoinder of parties is not limited to cases in equity. Second, the record does not show a good reason for not joining the co-contractor as a party plaintiff.
*776“It is a long and well established rule of the common law, which is usually incorporated into the modern codes and practice provisions, that in an action ex contractu all persons having a joint interest—all living joint obligees on a contract which is joint and not several who are within the jurisdiction—must be joined as plaintiffs in an action on or arising from breach of that contract; if the consent of any one of such joint obligees cannot be obtained, he may under the practice of most states, be made a defendant.” 39 Am. Jur. 893, § 30. See also Bernstein v. Fagelson, 38 Ga. App. 294 (143 SE 237); Thompson v. Watson, 186 Ga. 396 (2) (197 SE 774); 67 CJS 942, § 24; National Fire Ins. Co. v. Banister, 104 Ga. App. 13 (2) (121 SE2d 46). “When the contract is made with several jointly, all should sue for the breach, unless some good reason is shown in the case why they do not; death or refusal to join may be such reasons.” Phillips v. Poole, 96 Ga. 515, 518 (23 SE 504). See also 1 Chitty on Pleading 8-9 (14th Am. Ed.). Failure to join a necessary party plaintiff can be raised by special demurrer. Sowell v. Sowell, 212 Ga. 351 (92 SE2d 524); McCallum v. Bryan, 213 Ga. 669 (100 SE2d 916); 67 CJS 1121, §119 (b) (2).
In my opinion the stipulations do1 not show a legal reason for not joining the co-contractor as a party plaintiff. The Bernstein case, supra, cited as authority for the majority opinion, is distinguishable for the reason that the joint interest in the contract had been assigned. Since the petition we are now considering neither alleged that the plaintiff’s joint obligee refused to join in the suit nor prayed that he be made a defendant, I am of the opinion the trial court did not err in sustaining the special demurrer on the ground of nonjoinder of a necessary party.
I am authorized to state that Chief Judge Felton and Judges Eberhardt and Pannell concur in this dissent.