Eugster & Co. v. La Compagnie Commerciale de Transports a Vapeur Français

Concurring Opinion. McGloin, J. In this case the petition, taken as an entirety, and considered in connection with the affidavit, can scarcely be considered as alleging unequivocally, and beyond all doubt or *167 uncertainty, that Fidele Eugster alone constituted the firm of Eugster & Co. The petition is that of Eugster & Co., and not primarily of Fidele Eugster, and throughout, including the prayer, it uses, with persistence, the term “ petitioners,” instead ofpetitioner,” with verbs likewise in the plural number to correspond. So, in the affidavit. Fidele Eugster does not swear that, he alone composes the firm of Eugster & Co., but on the contrary, he makes oath positive that he is “ a member of Eugster & Co.” See Ferguson vs. King, 5 La. An. 642. The rule is, that amendments favoring justice and tending to prevent multiplicity of suits, are to be favored. Jelks vs. Smith, 5 La. An. 674; Mouton vs. Cameau’s Heirs, 5 La. An. 566; Swilley vs. Low, 13 La. An. 412; Richardson vs. Fenner, 10 La. An. 600. I consider that there was a doubt, and that the learned Judge a quo should have given to plaintiffs the benefit thereof; Nor has an examination of the authorities satisfied me that the law is so very rigid in excluding amendments of this kind, where the plaintiff is clearly a firm, and the amendment relates not to the character of the action sought to be enforced by that firm, but to the composition of the firm itself. R. W. Estlin, Liquidator, vs. Ryder, 20 La. An. 251, was a case where plaintifi sued as liquidator of a firm composed of himself and--. Subsequently an amendment was permitted, setting up that that there was no liquidator, and the partners were permitted to cany on the suit in their own names and interests. So in Payne vs. Fenlow, 21 La. An. 160, a suit instituted originally by Payne, surviving partner and liquidator, was changed into one by Payne, individually. The reception of the amended petition must do away with the question of illegality presented in the exception of defendant to the petition; hence, I see no necessity which demands an expression of opinion upon the merits of said exception. For these reasons I concur in the decree.