
    No. 908
    BENNETT v. BERLIN BAKERIES CO.
    Ohio Appeals, 9th District, Lorain County
    No. 247.
    Decided Oct. 4, 1923
    203. PARTNERSHIP.
    Suit by one partner against the firm on a partnership note denied.
    55A. RILLS AND NOTES.
    Alteration of partnership note payee after being signed, from bank to member of firm, is material alteration.
    Attorneys — Kudin. & Keech, Elyrip, for plaintiff; C. R. Summers, .Qberlin, .for defendant.
   FUNK, J.

Epitomized Opinion

Action on cognovit note. The judgment on motion of defendant was suspended and an answer was filed. Plaintiff then filed an amended petition alleging defendant to be a partnership composed of plaintiff and six other persons; that .the note was for a consideration delivered to plaintiff executed in the name of the partnership by one of the six other partners; that the payee was a bank; that when plaintiff presented the note to the bank to be endorsed to him without recourse the bank altered the note by changing the name of the payee to plaintiff’s name.

The amended petition further declared that there was due plaintiffs' from defendants because of the above facts the sum of $350 with interest, etc., for which plaintiff ask'ed judgment. A motion by defendant to strike out and to compel plaintiff to amend was sustained and on plaintiff’s refusal to' amend the lower court dismissed the action; to which plain^ tiff excepted and brought error proceedings to- thiW court. Held:

■ Since the transcript of the docket and journal entries does not show the ground on which, the lower court dismissed the action, this court assumes it to be that the petition did not state a cause of action. Without deciding whether plaintiff had the right to amend the petition changing the cause of action from one on the note to one for consideration such as for money had and received or otherwise, the judgment Of the court is affirmed for the following reasons: In Ohio a suit against a ■ partnership must be brought against all the partners jointly; a note given' by the partnership to one of the partners cannot be sued on by that partner against the partnership in a court of law for the reason that the payee must appear' both as plaintiff and defendant and recover a judgment in his own favor against himself. Further, plaintiff' has no cause of action on the note because of the material alteration after it was signed.  