Dillon v. Chouteau

• Decision Date: 31 May 1842
• Citation: 7 Mo. 386
• Parties: DILLON v. CHOUTEAU.
• Court: Missouri Supreme Court

7 Mo. 386

DILLON

v.CHOUTEAU.

Supreme Court of Missouri.

May Term, 1842.

APPEAL FROM THE ST. LOUIS CIRCUIT COURT.

GAMBLE, for Appellan.

SPALDING & TIFFANY, for Appellee.

TOMPKINS, J.

On the 17th day of May, 1838, John P. Reilly and Henry Chouteau instituted a suit against Dillon, in the Circuit Court of Louis county. On the 9th day of January, 1840, the death of Reilly was suggested on the record, and afterwards at the same term, Chouteau obtained a judgment against Dillon to reverse which Dillon prosecutes this appeal. This state of facts appears on the record. Reilly and Chouteau had been partners in trade, and while that partnership continued Dillon had purchased goods and received money from them; and for the amount of such goods and money this suit was brought. Dillon and Reilly had previously been partners, and on the 25th day of June, 1836, that partnership being dissolved, Reilly, as principal, and Chouteau, as his security, made and delivered to Dillon a bond, reciting that, whereas said Dillon and Reilly had that day executed an article of dissolation of partnership, wherein said Reilly had covenanted that he would give bond and security to said Dillon, to save him harmless from the liabilities and demands against the said firm of Dillon and Reilly; therefore, for the purpose of complying with the said covenant, they, as principal and security as aforesaid, covenanted with Dillon that Reilly should pay all demands against, and liabilities for such firm, &c. On the same day that Dillon and Reilly dissolved partnership, Chouteau and Reilly became partners; and on the 27th day of May, 1837, they dissolved that partnership, and Reilly transferred to Chouteau all the debts, effects, and property of the firm of Reilly and Chouteau. Reilly afterwards gave Dillon the following certificate: “October 13th, 1837. I state that the merchandise and cash charged to the account of Patrick M. Dillon, on the books of Reilly and Chouteau, were furnished to said Dillon, subject to the settlement of the affairs of the copartnership formerly existing between said Dillon and myself, under the firm of Reilly and Dillon. If on such settlement it should appear that I am not indebted to him as a partner of Reilly and Dillon, then he will owe the amount of his said account to Reilly and Chouteau.” This was the understanding of all parties in relation to the said accounts, and was that upon which it was created, and is the better understood from the fact that Mr. Chouteau came into the establishmeut in the place of Mr. Dillon, who retired from the business.

Chouteau, as above stated, commenced his suit against Dillon in the name of Reilly and Chouteau, in the month of May, 1838, after the date of the above certificate; and the certificate was dated after the dissolution of the partnership of Reilly and Chouteau. Dillon offered the certificate in evidence, and the court excluded it, and Dillon excepted to the decision of the court. Was the certificate properly excluded? In 2 Starkie, 22, it is stated that the admission of a party on the record is always evidence, although he be but trustee for another, and although it appear from the admission itself that he is such. To the same purpose see also Boerman v. Radenius, 7 Term R. 633. It may be added, that it was in Chouteau a voluntary act to purchase the interest of Reilly in the partnership goods, and it...