
    Isaac McCord and others v. The West Feliciana Rail Road Company.
    Suit on a contract entered into by certain individuals, the petition setting; forth their names, and reciting that, under the firm of Isaac McCord and Company, they had undertaken to execute certain work. In articles of partnership, entered into for the purpose of executing the work, subsequently to the contract, it is provided that the name of the firm shall be McCord and Company: Held, that the variance between the name of the firm as recited in the petition, and as set forth in the articles of agreement, is immaterial.
    Where the record shows that all the persons who entered into the original contract with the defendants, are plaintiffs, it will be no objection that others, who became subsequently interested in the contract, without the privity of the defendants, are not made parties to the suit.
    Where a partnership has been dissolved by the death of one of the members, an action may be maintained by the survivors, and the legal representatives of the deceased.
    In an action by the survivors, and the curator of the succession of a deceased partner, the death of the curator pendente lite, is no cause for dismissing the suit. The action may be prosecuted by the heirs,or other legal representatives of the deceased partner.
    Action before the District Court of West Feliciana, Weems, Parish Judge, presiding. The petition alleges that the defendants are indebted to the plaintiffs in the sum of five hundred thousand dollars, for this : that on the 13th of January, 1836, the petitioners, Isaac McCord, John Thompson, Usal Hopkins, since deceased, and whose succession is represented by Archibald Harralson, as curator, John Cummings, and Charles A. Snyder, did, under the firm of Isaac McCord and Company, bind themselves to execute all ‘ the grading and road formation’ of the West Feliciana Rail Road, for which the Rail Road Company agreed to pay them in the manner set forth in the contract annexed to the petition. The petitioners also allege that it will appear from the contract, that the work to be executed by them amounted, at the contract prices, to the sum of five hundred thousand dollars ; that soon after the said 13th of January, they commenced the execution of their part of the contract, and continued to discharge every obligation, which it imposed on them, until the 1st of August, 1837, when, although they had taken all the necessary measures for complying on their part with the contract, by engaging laborers, purchasing timber, procuring tools, &c., they were compelled to suspend operations, in consequence of the neglect of the company to perform its part of the contract. They allege, that up to the time when they were thus compelled to suspend operations, they had executed work, of which the particulars are detailed, to the value of five hundred thousand dollars. They further allege, that in consequence of the failure of the Rail Road Company to comply with its engagements in various important particulars, which are specified, they have sustained damage to the amount of five hundred thousand dollars.
    The petitioners also aver, that the defendants are indebted to them in the further sum of thirty thousand dollars, for the erection of a bridge over the bayou Sara, under another contract made with them on the 9th of December, 1886.
    By a provision in the articles of copartnership entered into between the plaintiffs, on the 7th of May, 1836, it is declared that the association shall be known as the firm of McCord and Company.’ It appears from these articles, that one Henry Colestock was also a member of the association, though not a party to the contracts with the Rail Road Company, which had been executed on the 18th of January, preceding. The subsequent contract of the 9th of December, 1836, for the erection of the bridge over the bayou Sara, is not in the record. On the 17th of December, 1839, the death of Harral-son, the curator of Hopkins, one of the plaintiffs, was suggested, and leave obtained from the court to make the representatives of Hopkins parties to the suit; and on the 27th of May, 1841, John Cummings, who had been appointed curator to his vacant succession, was made a party.
    
      Lobdell and Turner, for the appellees. No counsel appeared for the plaintiffs.
   Bullard, J.

The defendants relied, in the court below, on the following exceptions, which were pleaded in limine litis. 1. That the plaintiffs cannot maintain the action under the name and style of Isaac McCord and Company, because the name in the articles of partnership is McCord and Company. 2. That there were other parties to said contract, who have not been made parties to this action. 3. That the partnership was a special one, and was dissolved by the death of Hopkins ; and no action can be maintained in the name of the late firm. 4. That the petition is vague, uncertain, and contradictory. 5. That the damages are not specially set forth, and that only special damages can be recovered. 6. The death of Harralson, curator of one, of the parties, since the inception of the suit.

The second and fourth exceptions having been sustained, and the suit dismissed, the plaintiffs appealed.

I. The names of the plaintiffs are set forth, and whether they call themselves Isaac McCord and Company, or McCord and Company, is not material.

II. The record shows, that all the persons who entered into the original contract with the defendants, are plaintiffs in this action. If other persons became interested afterwards, it does not appear that it was with the privity of the defendants, and they can have no direct action upon the contract. The action was well brought, in the names of the original contracting parties.

III. Admitting that the partnership was dissolved by the death of Hopkins, it does not follow that the parties, and their legal representatives, could not maintain this action.

IY and Y. The petition appears to us to set forth the cause of action, with sufficient certainty.

VI. The death of the curator of one of the original contractors, pendente lite, does not appear to us a sufficient cause for dismissing the action. The heirs, or other legal representatives, might well come in, and prosecute the suit.

We conclude that the court erred in dismissing the suit.

It is, therefore, adjudged, that the judgment of the District Court be reversed, and that the cause be remanded for further proceedings according to law; the defendants paying the costs of this appeal.  