Jennings & Fleming v. Russell Bros. , 1891 Mo. App. LEXIS 439 ( 1891 )

Smith, P. J.

Plaintiffs, partners, sued defendants ; as partners on an account for goods sold and delivered i "by the former to the latter. The defendant, Joseph A. ■ Russell, filed a separate answer, wherein he denied that : at the time alleged in the petition, or prior or since, he rand the other defendants named were partners engaged in business of any kind under the name and style of íRussell Bros., and denied the indebtedness alleged by •plaintiffs. The other defendants did not answer. The Issue thus made was as to whether the defendant, Joseph A. Russell, was a member of the firm of Russell Bros, at the time of the sale of the goods. The undisputed .evidence is .that he then was. It is true there is evidence from which it appears that he sold out his interest in thefirin to his brother, John Russell, but it also conclusively shows that there was no notice given of the dissolution, until Jajraary 15, 1890, which was more than a month, after the last item in plaintiffs’ account had accrued. The-evidence further shows that the plaintiffs had no knowledge, whatever, of the fact that there had been any change in the membership of the firm of Russell Bros, even if such change had been effected at a time prior to-the date of the published notice of the dissolution.

Whether the defendant, John Russell, was a member of the firm at the time of the purchase of the plaintiffs’ goods, was immaterial, since he does not complain of being charged by the plaintiff as such. The fact remains indubitably established by the evidence that Joseph A. Russell was such partner at least as to the plaintiffs, who had- no notice of his retirement from the firm. The question under the pleadings was, whether the defendant, Joseph A. Russell, was a member of the firm of Russell Bros, at the time the plaintiffs sold and delivered to it the goods mentioned in the account sued on. As to whether John Russell was a member of the firm, was not an issue under the pleadings.

The court undoubtedly erred in instructing the jury to the effect that there was no testimony to show that' defendant, Joseph A. Russell, was ever a partner of defendant, John Russell, and, therefore, the plaintiffs-could not recover. The plaintiffs’ right to recover did not depend upon the fact whether the defendant, Joseph A. Russell, was a partner of John Russell or not. The hypothesis of this instruction was faulty. The issue which the pleadings made, and which the jury should have been required to determine, was, whether the •defendant, Joseph A. Russell, was a partner of the firm of Russell Bros, when the goods were purchased of the plaintiff. If the jury should have found that the defendant, Joseph A. Russell, was, and that John Russell was not, a partner in said firm at the time the firm contracted the debt, the verdict should have been for plaintiffs against Joseph A. Russell. This ruling under the pleading and evidence of the case, is no invasion of the rule laid down in 2 Bates on Partnership, 626.

J udgment of the circuit court must be reversed, and cause remanded.

All concur.