Broom v. Marshall

*542Gardner, Judge

(dissenting):

I adhere to my original dissent with the following additional observations. The sole issue raised by the appellant and addressed by the court is “if a partnership is doing business in the State of South Carolina, may the parties or any of them be sued severally and individually as individuals upon a partnership contract.”

The writer’s dissenting opinion dealth only with the individual liability of Colonel Rogers and the resulting partnership liability of Marshall and Taylor. The dissenting opinion holds, with dispositive authority, that one who signs a contract with a fictitious corporation is individually liable on the contract signed. In this connection, since the filing of the opinion in this case, the writer has observed that the first answer filed by Colonel Rogers, et al. actually alleged that the building contract was with the corporation, CAG Investments, Inc., which it developed was a fictitous corporation. This first answer was verified by Colonel Rogers and is startling evidence of the validity of the dissenting opinion filed by this writer.

The appellant’s position is that the partnership itself must be named as a separate party defendant in actions against a partnership. The majority opinion accepted this argument and reversed the general verdict rendered by the jury.

The clear holding of Marvil Properties, cited in the majority opinion, is that a partnership is not such a legal entity as to allow it to sue or be sued as such. There can be no other construction of Marvil Properties, which is dispositive of the case now before the court, and Marvil clearly holds that a partnership cannot be sued except by suits against the individual partners.

The writer additionally notes that Marvil limited the holding of Chitwood v. McMillan, cited by the maj ority opinion, by this language:

The statement in Chitwood v. McMillan, 189 S. C. 262, 1 S. E. (2d) 162 [sic] that “A partnership under the law is an entity, separate and distinct from the persons who compose it,” does not, as argued support the conclusion that a partnership may sue in its name. This principle has been applied solely in determining the legal relationships and *543liabilities of the partners, and has never been construed in this State as permitting a suit only in the partnership name.

The individual respondents of this case allege in their amended answer that Broom entered into a contract with CAG Investments, a partnership, and that the contract was signed by Colonel Rogers as an agent of the partnership. This answer, by the well-recognized doctrine of Aider,1 supplies Broom’s complaint with an allegation that the individual defendants acted as partners; this was the interpretation of trial judge of the issues presented by the jury on the law of partnership and the liability of the partners thereof. The defendants below made no motion for a special verdict against the individuals as members of a partnership as opposed to a' verdict against only the individual defendants as such. The verdict of the jury was a general verdict and consequently a verdict against the defendants both individually and as partners. Under either theory the verdict below should stand.

I would affirm the appealed judgment.

See 61A Am. Jur. (2d), Pleadings, Section 405.