Carico v. Moore

• Decision Date: 19 February 1892
• Docket Number: 403
• Citation: 29 N.E. 928,4 Ind.App. 20
• Parties: CARICO ET AL. v. MOORE ET AL
• Court: Indiana Appellate Court

29 N.E. 928

4 Ind.App. 20

CARICO ET AL. v. MOORE ET AL

No. 403

Court of Appeals of Indiana

February 19, 1892

From the Vigo Circuit Court.

Judgment affirmed.

W. H Soale, A. Grimes and I. N. Pierce, for appellants.

C. F McNutt and J. G. McNutt, for appellees.

OPINION

BLACK J.

The appellees, Thaddeus S. Moore and Ernest J. Langen, sued the appellants, George W. Carico, Wilson H. Soale, Andrew Grimes, George W. Loidley and Elmer S. Mason, whose demurrer to the complaint for defect of parties defendant was overruled.

The appellants answered in abatement for non-joinder of parties defendant. A demurrer to this answer was sustained. The appellants then answered by general denial. The cause was tried by the court, the finding being for the appellees. A motion for a new trial made by the appellants was overruled.

The rulings upon the demurrers and upon the motion for a new trial are assigned as errors.

It is also assigned that the complaint does not state facts sufficient to constitute a cause of action.

The complaint alleged that the appellees were partners, doing business under the firm name and style of "Moore & Langen;" that they were engaged in printing, book-binding and blank book manufacturing, and that they ran a job office, where they printed letter-heads, envelopes, circulars, notices, and like matter; that the appellants were partners, doing business under the firm name and style of "Wabash Mutual Live Stock Association;" that said association was a partnership; that the appellants were allowing their names to be used as members of said association and partnership, and that they were holding themselves out and allowing the association to hold them out to the world as members and officers of such association and partnership; that they were engaged in insuring horses and cattle and live stock generally; "that the defendant partnership are indebted to the plaintiff partnership in the sum of $ 98.15, for envelopes, circulars, letter-heads, reports, blanks, orders, receipts, postal-cards, assessment books, certificates of membership and printed constitutions and goods furnished and sold by the plaintiffs to defendants at the special instance and request of the defendants; that said envelopes, circulars, etc., were used by the defendant partnership in carrying on their insurance business. A bill of particulars of said goods, envelopes, circulars, etc., is filed herewith and made part hereof, and marked Exhibit A;' that defendants have wholly failed and refused to pay the said debt, although payment has often been demanded by said plaintiffs; that said sum of $ 98.15 is due and unpaid. Wherefore," etc.

Where persons associate themselves with each other, and carry on business together under a common name, but the association is not a corporation, the persons composing it may be regarded as partners. Kenyon v. Williams, 19 Ind. 44; Manning v. Gasharie, 27 Ind. 399; Love v. Blair, 72 Ind. 281; Coleman v. Coleman, 78 Ind. 344.

The business of a partnership may be carried on under any name which the partners adopt, though it be one in form appropriate for a corporation. Holbrook v. St. Paul, etc., Ins. Co., 25 Minn. 229; Crawford v. Collins, 45 Barb. 269.

The appellants object because no facts are stated in the complaint as to how they held themselves out as partners or as to how they permitted themselves to be held out as partners.

The complaint contained the direct averment that the appellants were partners, doing business under a firm name and style mentioned. The statement that they held themselves out and permitted themselves to be held out as partners, if not sufficient alone to charge them as partners, as to which we need not decide, was not inconsistent with the prior direct averment, and did not render the pleading insufficient.

The demurrer to...