(dissenting) — I have the misfortune to differ with the majority and I do so with a deep sense of the probability that it is right. My “deep sense” is fortified by the fact that the case was first argued to a department of this court and then reargued en banc. I found few in agreement with my thesis.
The majority opinion, however, recognizes that it is possible that
when Mr. Yates enlisted the aid of Mr. Fisher it was on behalf of the partnership of Simmons and Yates who were then representing Mr. Simmons in his personal litigation. (Italics mine.)
As I read the record, it supports this conclusion. Ownership of the cause of action is not material. Thus the employment of Mr. Fisher was by the partnership of Simmons and Yates and responsibility for attorney fees due Mr. Fisher became a partnership obligation of Simmons and Yates.
The question involves (a) the rule at common law; (b) a portion of the Washington Uniform Partnership Act (RCW 25.04.150); (c) a statutory procedural modification when an action is against two or more defendants jointly indebted (RCW 4.28.190); and (d) Rule of Pleading, Practice and Procedure 19 (a) and (b), RCW vol. 0. It would be asking too much to expect that all four would fall into a consistent pattern.
At common law (Warren v. Rickles, 129 Wash. 443, 449, 225 Pac. 422 (1924); 40 Am. Jur. Partnership § 189, p. 260) *788the partnership obhgation was joint. It was not joint and several.
The state’s adoption of the Uniform Partnership Act (Laws of 1945, ch. 137, § 15, p. 355; Laws of 1955, ch. 15, p. 127; RCW 25.04.150) did not materially change the rule.
The severity of the common law rule that all joint obligors must be joined as parties else there is no right to sue is discussed in 39 Am. Jur. Parties § 37, p. 906, and 68 C.J.S. Partnership § 214 b., p. 692.
Since the Code of 1881, § 68, p. 46 (reenacted by Laws of 1893, ch. 127, § 13, p. 411), now RCW 4.28.190, there has been a statutory modification of the common law procedure. It has been implemented, with slight changes, by Rule of Pleading, Practice and Procedure 19(a) and (b), RCW vol. 0.
I fail to find that either the statute or rule of court can be of solace to the plaintiff (respondent). Because Mr. Yates was a friend and classmate of plaintiff’s, he specifically chose to sue only one of the joint obligors when the other joint obligor (Mr. Yates) was not only within the jurisdiction but physically present in court.
In the present posture of this case, it would add nothing to the decisional law of this jurisdiction for me to expand upon the authorities I have cited, for their application depends, as I pointed out at the beginning, upon an interpretation of the facts.
I would, however, suggest that it was error to enter judgment on a joint obligation against defendant Simmons. I would reverse and remand with directions to dismiss the action.
December 11, 1967. Petition for rehearing denied.