Hall v. Glessner

• Decision Date: 10 March 1890
• Parties: HALL v. GLESSNER et al.
• Court: Missouri Supreme Court

13 S.W. 349

100 Mo. 155

HALL v. GLESSNER et al.

Supreme Court of Missouri.

March 10, 1890.

PARTNERSHIP — SPECIAL PARTNERS — LOAN BY PARTNER INDIVIDUALLY — EVIDENCE.

1. N. and W. were partners, and as such leased to defendants, also a partnership. Soon afterwards W. bacame a special partner in defendants' firm. N. Loaned money to the defendant partnership, giving the check of N. & W. and the loans were entered in defendants' books as from N. & W. It appeared, however, that N. & W. had the right to check out partnership money for individual use, and that the loans were in fact made by N. individually, though by the firm checks. Held, that this evidence was sufficient to sustain a finding that the loans were made by N. individually, and not by N. & W. as partners.

2. The fact that W's. contribution as special partner to defendants' firm was in the form of a check of N. & W. did not constitute N. a special partner as well as W.

3. And an attachment by N. of the property of defendant partnership could not fall within the provisions of Rev. St. Mo. 1879, § 3410, declaring that "no sale, transfer, or change of the property or effects" of a limited partnership, "made for the purpose of giving a preference or priority to one over other of his or its creditors, shall be valid against its creditors, if made where he or the firm is insolvent, or in contemplation of insolvency."

Appeal from circuit court, Clay county; D. C. ALLEN, Special Judge.

The plaintiff, Nathan J. Hall, brought an action by attachment on certain notes against defendants, Glessner & Ross. After the plea of the latter in abatement had been tried, and had failed, Selden and others, who meanwhile, had obtained judgments against Glessner & Ross by confession, levied executions on the property which plaintiff's atta hment held, and then filed interpleas in the plaintiff's action, praying the circuit court to postpone the lien of his attachment to that of the executions mentioned. After a full hearing on the merits, the trial court denied the relief asked by the interpleading creditors, found for plaintiff, and gave judgment accordingly. The interpleaders then appealed in due form.

Bottsford & Williams and Lathrop, Smith & Morrow, for appellants. Wash. Adams and F. L. Wilkinson, for respondent.

BARCLAY, J.

1. In the view we take of the merits, it will not be necessary to consider various question regarding the form of the proceedings which counsel have discussed. We pass them, and deal at once with the substance of the controversy. Nathan J. Hall, plaintiff, and his brother, William M. Hall, as partners under the name of Hall Bros., leased a building in Kansas City, in 1883, to Glessner & Ross, defendants, who occupied it, until their failure, as a candy and cracker store and manufactory. When the lease was made William M. Hall became a special partner in the firm of Glessner & Ross by formal articles under the statute governing limited partnerships. Rev. St. 1879, c. 57; Rev. St. 1889, c. 123. After wards funds to a large amount were loaned, at various dates, to Glessner & Ross, in circumstances which give rise to the litigation now before us. Plaintiff claims that these loans were made by him individually, and they form the basis of his cause of action. The interpleaders assert that they were made by the firm of Hall Bros., an not by plaintiff alone. This issue is the most important one in the case, for it is obvious that plaintiff's rights would be materially different from what he claims, if the interpleaders' assertion were established, having in view ...