American Hand-Sewed Shoe Co. v. O'Rourke

• Decision Date: 05 February 1900
• Citation: 59 P. 910,23 Mont. 530
• Parties: AMERICAN HAND-SEWED SHOE CO. v. O'ROURKE et al.
• Court: Montana Supreme Court

59 P. 910

23 Mont. 530

AMERICAN HAND-SEWED SHOE CO. v. O'ROURKE et al.

Supreme Court of Montana

February 5, 1900

Appeal from district court, Silverbow county; William Clancy, Judge.

Action by American Hand-Sewed Shoe Company against John O'Rourke and others, co-partners as A. Ducharme & Co. Judgment for defendant O'Rourke, and plaintiff appeals. Reversed.

Plaintiff alleges that it is, and was at all times mentioned in the complaint, a corporation organized and existing under and by virtue of the laws of the state of Rhode Island; that for some time prior to the 1st day of May, 1894, it had a course of dealings upon credit with the said defendants, doing business as co-partners; that on or about said 1st day of May defendant John O'Rourke withdrew from said partnership that at various times between the said 1st day of May, 1894 and the 21st day of December, 1895, plaintiff sold certain goods to the said partnership upon credit; that a balance of $1,171.67 remains unpaid upon said account, though demand of payment has been made; that plaintiff had no notice or knowledge at any time prior to said 21st day of December of the withdrawal of the said John O'Rourke from said partnership; that during all of the said time from the said 1st day of May, 1894, to the said 21st day of December, 1895 said partnership business was continued at the same place and under the same firm name as before, and that during all of this time defendant John O'Rourke held himself out as a partner in said firm; that plaintiff was induced to sell such goods upon credit in the belief that the defendant John O'Rourke continued as a member of the said firm; and "that all of said goods, wares, and merchandise were ordered by the said A. Ducharme & Co., in said Butte City Montana, and were shipped and consigned by plaintiff to the said A. Ducharme & Co. at the said Butte City, Montana." The answer of defendant John O'Rourke admits all of these allegations except that he held himself out as a partner subsequent to the 1st day of May, 1894, and that plaintiff did not have knowledge and notice of his withdrawal. Defendants Thomas O'Rourke and A. Ducharme suffered default. The cause was tried as between plaintiff and defendant John O'Rourke. A witness being called on behalf of plaintiff, defendant objected to the introduction of any testimony, and moved for judgment on the pleadings. The objection and motion were by the court sustained, and...