Lomme v. Kintzing , 1 Mont. 290 ( 1871 )

Waeren, C. J.

The court below, in this case, on motion of the plaintiff, rendered judgment on the pleadings, from which the defendants appeal. Under our practice, where an answer raises no material issue, the plaintiff may either move that it be stricken out as sham and irrelevant, or move for judgment. This is an action upon an account against the defendants, as copartners, under the firm name of B. C. Kintzing & Co., in the town of Helena and Territory of Montana. The separate amended answer of B. C. Kintzing denies the partnership under the style and at the time and place alleged; denies indebtedness of defendants as such partners; denies any promise by himself to pay; denies any amount to be due plaintiff, and pleads as new matter that the defendants were, for a short time, in the spring of 1869, associated in business in the town of Helena and Territory of Montana, under the style of B. C. Kintzing & Co., but that C. S. Kintzing furnished all the capital stock for such business, and by special agreement was to be individually liable for all debts incurred therein, and B. C. Kintzing was to receive one-third of the profits thereof in compensation for his services, and avers that plaintiff had actual knowledge of this agreement, while in the employment of B. C. Kintzing & Co., and further pleads an adjudication of bankruptcy of C. S. Kintzing since commencement of this action.

These denials raise no issue as to the fact of partnership, or the alleged liability of the defendants as partners. The 'new matter is insufficient, as it states facts which legally constitute a partnership, and in order that the special agreement between defendants as to individual liability should affect the plaintiff, it was necessary to aver that plaintiff had notice or actual knowledge of such agreement, before the liability alleged in the complaint accrued. The allegation that plaintiff had such knowledge “while in the employment of B. C. Kintzing & Co.,” is too vague, and being taken most strongly against the pleader, is insufficient.

Under the plea of bankruptcy of C. S. Kintzing, the court directed a stay of proceedings as to him, and rendered a judgment in favor of plaintiff for the amount claimed, to be enforced against the partnership property of B. C. Edntzing & Co., and the individual property of B. C. Kintzing. If this is error, it is not such as either appellant can complain of. ■

Judgment affirmed.