
    J. B. Elder v. T. M. Tucker et al.
    
    (CC 523)
    Submitted February 5, 1935.
    Decided February 19, 1935.
    
      R. S. Blair and Harry R. Taylor, for plaintiff.
    
      Thomas J. Davis, for appellants J. Clyde McNeill and Ben F. Hammer.
    
      8. P. Bell for defendants E. R. Lester and others.
    
      W. F. Boggess for defendants C. D. Edelan and J. L. McBride.
   Woods, Judge:

This certificate involves the sufficiency of a notice of motion, a demurrer thereto having been sustained.

The plaintiff, by his motion, seeks to recover a joint and several judgment against twenty-seven individuals, as members of a mining partnership, for labor performed in cleaning out and sinking to a greater depth, a certain oil well. He alleges that the labor was performed under a contract with S. G. Moyer, one of, and agent for, defendants, under a certain power of attorney. The power of attorney, which, upon oyer being craved, was exhibited and made a part of the motion, is signed by thirty-two individuals, including the plaintiff and the several defendants herein, each having a one thirty-second interest in the leasehold upon which the well was located.

It is a general rule that one partner cannot sue his co-partner, or co-partners at law, for any debt or demand towards which he must ultimately contribute. 47 C. J. 825; 20 E. C. L. 924; Note, 21 A. L. R. 21, 48. To permit this to be done, unless the undertaking by the promisors was by them as individuals, so that the contract was a personal one, amounting to a private undertaking separate and distinct from the partnership, would present the anomaly of a single individual acting as both plaintiff and defendant in the same action. Wright v. Michie, 6 Gratt. (Va.) 354, 357. The notice of motion is based on the power of attorney, to which plaintiff, himself, is a party. Under it the signers became a mining partnership. Childers v. Neely, 47 W. Va. 70, 34 S. E. 828. The notice of motion does not aver that plaintiff has at any time ceased to be a partner in the development of the leasehold. Nor is it shown by such pleading that an accounting will not be necessary to a determination of plaintiff’s rights. Knopsnyder v. Quinn, 68 W. Va. 577, 70 S. E. 363. The demurrer was therefore properly sustained.

Ruling affirmed.  