Epstein Bro. v. First Nat. Bank of Tampa , 92 Fla. 796 ( 1926 )

The plaintiff's motion to strike out the name of Max Strauss and to continue the suit against Wilfred C. Clarkson, doing business under the firm name and style of "Florida Crushed Rock Company," was consented to by the defendant Clarkson, and the court very properly made the appropriate order.

As partners are individually as well as jointly liable for partnership debts, this amendment did not work a complete change in the character or capacity in which Clarkson was being sued. Nathan v. Thomas, 63 Fla. 235, 58 So. 247; Florida Brewing Company v. Sendoya, 73 Fla. 660, 74 So. 799; Thomas v. Nathan, 65 Fla. 386, 62 So. 206. There was no amendment of the cause of action sued on, which remained substantially the same. The amendment allowed by the court was of such a character as related back to the commencement of the suit so as to prevent the bar of the Statute of Limitations. See 17 R. C. L. 824, 825, and cases cited, including Manistee Mill Company v. Hobdy,165 Ala. 411, 50 So. 871; also cases cited in the opinion of Judge KOONCE.

The suit was not brought against a partnership as a legal entity; it was brought against Strauss and Clarkson "as co-partners doing business under the name and style of Florida Crushed Rock Company." That this amounted to a suit against each of them as individuals, as well as in the alleged partnership relation, is borne out by the following authorities. In Richardson v. Smith, 21 Fla. 336, it was held that an unincorporated company or partnership cannot sue in its company or firm name, but must sue in the name of the individuals composing it. In Marx Brothers v. Culpepper,40 Fla. 322, 24 So. 59, it was said by this court: "The partnership name is of small or no importance, and in this state suits by or against partners must be in the individual names of the firms." Citing several Florida cases. In the opinion in that case, the following quotation from a Massachusetts case is quoted with approval: "It is said that a firm is a legal person, and that a dead person cannot sue, but a firm is not a person in the sense supposed. For technical purposes of suing or being sued, the law does not know the firm, but only the men composing it." At common law, a firm or partnership is not regarded as a legal entity apart from the members composing it, and hence a partnership as such could not sue or be sued in the firm name, all actions running in the name of the individuals associated as partners. 22 Am. Eng. Encyc. of Law, 7576. However, it is very well said, in 30 Cyc. 422, 423, that: "While it has been stated broadly that a partnership is but a relation and is not a legal being distinct from the members who compose it, still the law does take note on a wide scale of partnership as a legal entity and regards it as a unit both of rights and obligations, and there is a general tendency at this day to complete the recognition of a partnership as a body of itself with its own means appointed to its own debts. It is the scheme of the United States Bankruptcy Act to treat partnership as an entity, which may be adjudged as bankrupt, irrespective of any adjudication of the individual partners as bankrupts."

But it is also laid down in the same work, that, in the absence of a statutory provision, a partnership cannot sue or be sued as an entity. 30 Cyc. 556, 561.

Inasmuch as the amendment was consented to, and did not work a complete change in the parties defendant, it did not amount to a new suit, or such a departure in after pleading as would prevent such amendment from relating back to the commencement of the suit and thus avoid the running of the Statute of Limitations.

For the reasons above pointed out as well as those stated by Judge KOONCE, the judgment of the court below should be reversed.

WHITFIELD, ELLIS, TERRELL, STRUM AND BUFORD, J. J., concur.