Bascom v. Young , 7 Mo. 1 ( 1841 )

Opinion of the Court by

Tompkins, Judge.

Young commenced two actions, before a justice of the peace, against the appellants, Mylius and Bascom, both founded on notes. Notice of the actions were served on Bascom ; but was returned by the officer that Mylius was not found. In the one case the judgment of the justice was for the defendant, Bascom; and in the other for the plaintiff, Young. Appeals to the circuit court were taken in both cases. Young took his judgments in the circuit court against the defendants; and in each cause, and in every entry of each days’ proceedings, Mylius and Bascom are named either as defendants, or in their accidental character of appellants or appellees. It was proved that Mylius and Bascom were partners in an establishment for selling jewelry ; that some time in the year 1839, Bascom was absent from St. Louis, in the east, for the purpose of purchasing supplies for this establishment: and that during his absence the several sums of money for which these notes were executed by Mylius in the name of the firm, viz: John P. Mylius & co. The one was for $150, the other for $120. Young kept-an exchange office in St. Louis. It was also proved by him that, during the said absence of Bascom, Mylius had executed notes in the name of the firm to other persons, which Bascom, after his return, had paid. The consideration of these other notes was jewelry. Other evidence was given, which it is not material to notice here.

The plaintiff in error, Bascom, contends that the- judgment of the circuit court ought to be reversed: First, because judgment is taken against Mylius and Bascom, when Bascom alone was summoned; and secondly, because it does not appear that the money was borrowed for the use of the firm, and that to deal in money was not in the course of their trade.

The first objection to the judgment appears to be well taken. Young, the defendant in error, should have taken judgment against Bascom only. But it does not appear from any evidence in the cause, that Young had any reason to believe that Mylius wanted this money for his own private use only, and the amount of both notes was so small, it might well have been necessary to the firm in the ordinary transaction of its business on such an occasion. Bas-com aPPears fr°m I^e evidence to have had all the capital used in the trade: he was absent for the purpose of purcha-s¡ng goods, and that amount of money borrowed might probably enough háve been riecessary to the firm. He seems ^ave misP¡ace(i his confidence; for Mylius appears by the evidence to have absconded before BaScom’s return to St. Bouis. It is then more fit that he should bear the loss consequent on the improper conduct of his partner, than that Young, who does not appear to be privy to any fraudulent intent on the part of Mylius, should bear it.

rowed^y ° a name^f" firm becomes debtf "unless the lender reason to be. Reve,that the wanted the own^private use, or the was out of the coursfMjf bu siuess.

The circuit court, then, in my opinion, committed no error refus^ng Bascom a new trial; but because its judgment was for Young against both Mylius and Bascom, when Bascom alone had been summoned, its judgment ought, in °P‘n'on) 1° reversed ; and' such being the opinion of Judge Napton, its judgment is reversed; and this court directs the clerk to enter up judgment against Bascom alone, against whom the circuit court ought to have entered up judgment.