Enix v. Hays , 48 Iowa 86 ( 1878 )

Rothrock, Ch. J.

I. It is urged that the findings of fact are inconsistent with the pleadings. The record does not contain the evidence. Both parties concede that the facts found are true. They must have been established by evidence and we must presume, in the absence of a showing to the contrary, that no objection was made to the evidence, and that the parties submitted the cause upon evidence tending to establish the facts found.

We will, therefore, determine the ease as it was presented to the court below.

1. PAram. ship : pi'omissory note. II. The defendant claims that there should be no recovery against him, because as to him the plaintiff and Pleasant Enix were partners in the ownership and sale of the cattle, and the action should have been brought by them , as partners.

The ready answer to this position is, that they were not in fact partners, and, while the defendant may have the right in making his defense to treat his purchase as a partnership transaction, he cannot claim that the parties to the supposed •partnership shall join in the action as plaintiffs.

III. It is further urged by defendant that he was not bound to make inquiry whether plaintiff was principal or surety on the note held by the bank, but had the right to regard both the plaintiff and Pleasant Enix as principals. We think this position is not sound. The fact that the note was •signed by the plaintiff, as a maker, cannot be claimed by defendant as a representation that plaintiff was a principal. Further than this, the court found that' the defendant ought to have known that the note was the individual debt of Pleasant Enix, “from the circumstances under which it was paid. ”

The mere fact that the name appeared to the note as maker did not warrant plaintiff in assuming that he was a principal. He should have made inquiry.

IV. The plaintiff insists that the judgment should have been for the whole of the purchase price of the cattle.

The court found that, from the representations made by plaintiff and Pleasant Enix, the defendant had the right to hold them as partners. Whether as equal partners, each •entitled to one-half of the proceeds of the cattle after the •payment of the partnership debts, does not appear. In our judgment, however, the interest of Pleasant Enix is immaterial, because there was no partnership in fact.

The cattle were owned by the plaintiff, in his own right. The defendant sought to discharge what as to him, was a debt due from-him to a partnership by a debt owing by one of-the partners to him. To do this, he must show the extent of the interest of the debtor partner in the partnership property. It is not sufficient that he show generally that the parties held themselves out as partners. The interest of each partner in the partnership effects is his share of the surplus which may remain after satisfying the partnership creditors, and that share of the surplus only is liable for the separate debts of such partners. 8 Peters, 271.

If the defendant had in good faith paid the price of the cattle to Pleasant Enix, the plaintiff would be in no position to complain, for he led the defendant to believe that the cattle were partnership property; but when the defendant seeks to set off the individual debt of one of the partners, the question is, what share or interest in fact has the debtor partner in the partnership effects? Pleasant Enix had no interest in fact in the cattle, nor in the proceeds of the sale, to which defendant’s claim against him could be applied.

Reversed on plaintiee’s appeal.