Grant v. Holmes

• Decision Date: 31 October 1881
• Citation: 75 Mo. 109
• Parties: GRANT v. HOLMES, Appellant.
• Court: Missouri Supreme Court

75 Mo. 109

GRANT

v.HOLMES, Appellant.

Supreme Court of Missouri.

October Term, 1881.

Appeal from Carroll Circuit Court.--The case was tried before I. H. KINLEY, ESQ., sitting as Temporary Judge.

AFFIRMED.

Hale & Eads for appellant.

Shewalter & Sebree and J. L. Mirick for respondent.

HOUGH, J.

This is a suit against the defendant as a member of the firm of Holmes & Co., which, it is alleged in the petition, is composed of the defendant and one George Magee. The petition sets forth certain transactions had by plaintiff with said Magee, for and on behalf of the firm of Holmes & Co., and avers that on a final settlement thereof there was found to be due to plaintiff the sum of $402.45, one-half of which sum was paid to plaintiff by said Magee, who was thereupon released and discharged by plaintiff from all further liability as a member of said firm, on account of said transactions, and prays judgment against the defendant for the balance due on said account, to-wit: The sum of $201.22. The testimony offered by plaintiff tended to sustain the allegations of his petition, and that offered by the defendant was in contradiction thereof.

The plaintiff asked no instructions. At the instance of the defendant, the court gave the following: 1. “In order to recover in this action, the plaintiff must show by a preponderance of evidence that at the time of the alleged transactions between plaintiff and Magee, defendant was a partner with Magee in the purchase and sale of said corn, and that the balance claimed is actually due from said alleged firm.”

4. “If the defendant was only interested in the shelling of the corn by contract between him and Magee, and was not interested in the purchase and sale of the corn, then the verdict should be for the defendant.”

The court, of its own motion, gave the following: “If plaintiff's transactions were with Magee alone, and not with the alleged firm, and he has voluntarily released Magee from the alleged balance, then plaintiff cannot recover in this action.”

The following instructions, asked by the defendant, were refused: 2. “If the plaintiff's accounts and transactions were all with and in the name of Magee, and he had no transactions with defendant by name, or in the name of the alleged firm, he cannot recover against defendant without showing that he was a dormant partner and that Magee is insolvent.”

3. “If plaintiff's transactions were with Magee by name alone, and not with the alleged firm, and he has voluntarily released Magee from the alleged balance, then he cannot recover in this action.”

5. “On all the testimony in the case, the verdict should be for defendant.” The plaintiff recovered judgment and the defendant has appealed.

The defendant contends that although he may have been a partner of Magee, the plaintiff by releasing Magee has discharged him also, and the petition, therefore, fails to state a cause of action against him. Section 666 of the Revised Statutes, is as follows: “It shall be lawful for every creditor of two or more debtors, joint or several, to compound with any and every one or more of his debtors, for such sum as he may see fit, and to release him or them from all further liability to him for such indebtedness, without impairing his right to demand and collect the balance of such indebtedness from the other debtor or debtors thereof, and not so released; provided that no such release shall impair the right of any debtor of such indebtedness not so released to have contribution from his co-debtors as is by law now secured to him.” The defendant contends that this section does not apply to a debt due by a copartnership. We are of a different opinion.

The instructions given by the court fairly submitted to the jury the question of the liability of the defendant as a partner. Without discussing the legal propositio...