Montgomery v. Floerke

HAMILTON, PJ.

This action was brought in the Common Pleas against John A. Stewart, John H. Stewart and James W. Montgomery, Jr. The defendants below, James Montgomery, Jr., and John H. Stewart, filed separate proceedings in error to this court. The same question is presented in both proceedings, and they will be consolidated and considered together.

The plaintiff alleges in his petition that on April 26, 1924, he obtained a judgment against the John A. Stewart Electric Company, a partnership. The petition further alleges that the judgment was obtained on a trade acceptance, made and issued by the John A. Stewart Electric Company; that he purchased it in the ordinary course of business for a valuable consideration. The petition further alleges that at the time the trade acceptance was made by the Stewart Company and that at the time the judgment was rendered the defendants were the individual partners doing business as The John A. Stewart Electric Company.

This suit was brought under favor of Section 11651 GC.

The defense of Montgomery and Stewart is that the transaction which involved the trade acceptance, was not the act of the partnership of which each admits he was a member at the time. That was a defense that should have been set up in the first action on the trade acceptance, and the defendants, and each of them, are precluded by that judgment from setting up, in this action, that it was not the debt of the partnership of which each was an admitted partner at the time. The question of the validity of that judgment as a debt of the partnership, cannot be interposed in this action.

Judgment affirmed.

(Cushing and Buchwalter, JJ., concur.)