Diamant v. Stein & Green

• Decision Date: 07 March 1938
• Docket Number: No. 19071.,19071.
• Citation: 116 S.W.2d 273
• Court: Missouri Court of Appeals
• Parties: SAM DIAMANT, APPELLANT, v. HARRY STEIN AND HOWARD J. GREEN, CO-PARTNERS. DOING BUSINESS AS STEIN & GREEN, RESPONDENTS.

116 S.W.2d 273

SAM DIAMANT, APPELLANT, v. HARRY STEIN AND HOWARD J. GREEN, CO-PARTNERS. DOING BUSINESS AS STEIN & GREEN, RESPONDENTS.

No. 19071.

Kansas City Court of Appeals. Missouri.

March 7, 1938.

Appeal from the Circuit Court of Jackson County. — Hon. Allen C. Southern, Judge.

AFFIRMED.

Rosenberg & Brenner and Joseph Koralchik for appellant.

James P. Aylward, Geo. V. Aylward and Terence M. O'Brien for respondents.

REYNOLDS, J.

This appeal comes to us from the circuit court of Jackson county at Kansas City.

On October 12, 1931, the plaintiff filed his petition in said court against the defendants, Harry Stein and Howard J. Green, as partners doing business under the name of Stein & Green, seeking to recover judgment on three separate promissory notes of $375 each, alleged to have been executed by the copartnership, together with interest at the rate of six per cent. per annum from January 23, 1930, one of which notes was set out in each of the three counts of the petition. The notes appear as executed by "Stein & Green By H. Stein."

From a judgment in favor of the defendant, the plaintiff, after an unsuccessful motion for a new trial, appeals.

Verified copies of the notes sued upon, marked "Exhibit A", "Exhibit B", and "Exhibit C", were filed with the petition.

Separate answers were filed by the defendants.

Without going into detail, it may be said that, by both of said answers, the copartnership is denied and that, by the one or the other, it is alleged that the defendant Stein was adjudicated a bankrupt on March 20, 1930, in the District Court of the United States for the Western Division of the Western District of Missouri and was discharged on or about April 13, 1931; that the indebtedness referred to in the various counts of the plaintiff's petition was listed in his schedule in bankruptcy; and that the plaintiff herein was duly notified by the bankruptcy court of such proceeding.

It may be observed that the defendant Green, by his separate answer, made general denial of all of the allegations of the petition and made specific denial that he executed the notes sued upon, either individually or as a member of a copartnership of Stein & Green. He specifically denied that, on January 23, 1930, the date upon which the notes sued upon were executed and delivered and upon which the indebtedness they represent accrued or at any other date set forth in the plaintiff's petition, he was a copartner with the defendant Stein or that he was doing business with the defendant Stein under the name of Stein & Green.

By said answer, he further sets up that any copartnership theretofore existing between him and the defendant Stein had been dissolved on March 31, 1928, and that notice of such dissolution had been given to all creditors of the copartnership to that time, and that the plaintiff was not a creditor of the copartnership but had full knowledge of such dissolution. By such answer, he denies that, from and after said date, the defendant Stein had any authority to create any indebtedness in a copartnership capacity for which he (the defendant Green) was liable or to execute any notes in the copartnership name for which he (the defendant Green) was liable. By such answer, he specifically denies that he at any time ever acknowledged the notes sued upon or the indebtedness for which the same were given as a copartnership obligation with the defendant Stein or otherwise. He further pleads a total failure of consideration for said notes, so far as he was concerned, and the lack of the due presentment of the same to him for payment and a lack of notice to him of their dishonor.

Each of said answers, in addition to the specific matters alleged, denies each and every other allegation of the petition.

The plaintiff separately replied to the separate answers of the defendants and denies therein that the defendant Stein was adjudged a bankrupt as a member of the co-partnership of Stein & Green or that the co-partnership was adjudged a bankrupt as such but alleges that the defendant Stein was adjudged a bankrupt as an individual and received his discharge as such from the court and sets up that the bankruptcy proceeding in which he was involved did not involve the co-partnership liability for the indebtedness sued upon in the various counts of the petition but involved only the individual liability of the defendant Stein and that, after his adjudication in bankruptcy, he revived his individual liability on the notes sued on by promising and agreeing to pay the same and admitted that they were a partnership indebtedness. By his replies, the plaintiff further alleges that, at the time that the notes sued upon were executed and delivered to him and at the time the indebtedness for which they were given arose, the defendants were holding themselves out or permitting themselves to be held out as co-partners doing business under the style of Stein & Green and denies that he received any notice or had any knowledge of the alleged dissolution of the alleged co-partnership existing between the defendants, on March 31, 1928, or on January 23, 1930, or at any time prior or subsequent thereto, until after the notes sued upon had been executed and delivered to him and the indebtedness for which they were given had accrued, but avers that, at the time the notes sued upon were executed to and accepted by him, he relied upon the fact that the co-partnership between the defendants existed and continued.

In substance there is evidence showing that the defendant Stein is the father-in-law of the defendant Green and that they were engaged as co-partners in the wholesale, ladies' ready-to-wear business at 903 Broadway, Kansas City, Missouri, under the firm name and style, of Stein & Green, from the early part of the year 1926 to March 31, 1928, a period of about two years. They advertised under such name by carrying such name on their stationery and on the windows and doors of their place of business and listed themselves under such name in the telephone directory.

Prior to the formation of the co-partnership between them, the defendant Stein had been engaged in the same business at the same place for many years, either alone or in connection with other parties. The evidence discloses that the plaintiff was in business at 904 Main Street in Kansas City, Missouri, near the place of business of the defendants; that he had an acquaintance with both of the defendants over an extended period of years; that his friendship with Harry Stein particularly had been an intimate and close one; and that he had frequently, during all of the years prior to the co-partnership between Stein and Green and subsequent thereto, lent Stein money to be utilized in his business or otherwise, which had always been repaid. The evidence does not show that he had ever personally had any business relations with the defendant Green.

The evidence discloses that the co-partnership between the defendants had been dissolved by mutual consent and by an instrument in writing duly executed on March 31, 1928; that the defendant Green, upon such date, retired from said partnership and relinquished to the defendant Stein all of the assets thereof and his interest therein upon the agreement by the defendant Stein to pay and discharge all of the partnership indebtedness; that he thereafter had no connection with said co-partnership or its affairs; that, during the course of the partnership, he had kept a desk in the place of business and assisted in looking after the affairs of the co-partnership; that, upon withdrawing therefrom, he associated himself with the Union Chevrolet Company and devoted all of his time to his business with that company; that, after the dissolution on March 31, 1928, he was no longer at the office of the co-partnership or had anything to do with the conduct of its affairs; that notice of the dissolution of the co-partnership was, at the time that it was made, published in the Kansas City Star, the Kansas City Post, and the Kansas City Times; and that notice thereof was also mailed by letter to the various creditors of the co-partnership and to various credit agencies.

It is true that there is some evidence on the part of the plaintiff that he received no notice of such dissolution and did not know of it; but there is evidence to the contrary, which made such question one for the jury.

The record tends to show that he knew that the defendant Green was no longer about the office of the co-partnership and that he was engaged in the automobile business with the Union Chevrolet Company and was giving his attention to that business and that, by inference, he knew from facts made known to him that Green no longer was a member of said co-partnership, if he had not been directly advised of that fact.

After the dissolution, the defendant Stein continued in charge of the business which had formerly belonged to the co-partnership, under the name and style, "Harry Stein, doing business as Stein & Green." The name of Stein & Green continued upon the windows and doors of his place of business, as throughout the copartnership; and he continued to use the stationery bearing such name of Stein & Green in his business, all over the protest of the defendant Green.

As stated, the evidence shows that the plaintiff had, prior to the co-partnership, been in the habit of financing the defendant Stein and making loans of money to him in various amounts from time to time. There is no evidence that he ever made any loan to the defendant Green at any time or any loan to the co-partnership of which Green was advised. The plaintiff himself testified that he had never at any time had any personal contact with the defendant Green in connection with any loan made.

A short time prior to January 23, 1930, the defendant Stein applied to the plaintiff for a loan to himself of $1500. The loan was provided; and, on January 23, 1930, the defendant Stein, in consideration...