Haley v. Scott , 18 Mo. 202 ( 1853 )

Gamble, Judge,

delivered the opinion of the court.

Haley filed his petition against Scott and another defendant, Otis, alleging that they were partners, composing a firm in Boston called u Otis & Co.,” and another firm in St. Louis called “ Scott & Otis that he sold to Otis & Co. merchandise to the amount of $484 78, for which Otis & Co. gave their notes ; that the notes not being paid, another note was executed in the name of Scott & Otis and the first surrendered; that this note not being paid, was given up by tbe plaintiff and an order was taken from Otis & Co. upon Scott & Otis for tbe amount, with interest, to be paid in goods at St. Louis ; that Scott & Otis refused to accept tbe order or deliver tbe goods, although demanded. Tbe suit, as to Otis, was dismissed, and Scott answered, denying that be was a partner of tbe firm of Otis & Co., and alleging that, if Otis & Co. bad purchased any goods of the plaintiff, they bad executed notes in satisfaction of tbe original indebtedness, and further alleging, that a part of tbe purchase made from tbe plaintiff, if any was made, was for tbe private use and account of tbe partner, Otis., and that Scott bad refused to accept tbe order drawn by Otis & Co. on Scott & Otis, for two reasons : first, because a part of its consideration was'for the goods bought by Otis for bis individual use; and second, because Scott was not a partner of tbe firm of Scott & Otis. Tbe trial was before tbe court and the evidence is preserved in a bill of exceptions, which was taken to tbe refusal of tbe court to grant a review. Tbe court found all tbe facts stated in tbe plaintiff’s petition. No evidence was given to show that Otis bad purchased any goods for bis individual use, nor that any notes were accepted in satisfaction of tbe original purchase, and tbe evidence is conclusive, that the defendant, Scott, was a member of both tbe Boston and St. Louis firms, which were composed of tbe same persons. The court gave judgment for tbe amount of tbe order, which included tbe amount of tbe original purchase.

■ 1. There is, really, no question of law presented in tbe case, and there is no doubt that tbe evidence warranted the judgment. Tbe defendant in error asks that damages may be awarded on the affirmance of the judgment. It is not according to the practice of tbe court to award damages when the case is brought here by writ of error, unless a supersedeas has been obtained. We give damages when tbe party, by appeal or su-persedeas, prevents tbe collection of tbe amount recovered.

Let tbe judgment be affirmed.