Keim & McMillan Hardware Co. v. Williams

• Decision Date: 07 April 1911
• Citation: 136 S.W. 1,154 Mo. App. 716
• Parties: KEIM & McMILLAN HARDWARE CO. v. WILLIAMS et al.
• Court: Missouri Court of Appeals

136 S.W. 1

154 Mo. App. 716

KEIM & McMILLAN HARDWARE CO. v. WILLIAMS et al.

Springfield Court of Appeals. Missouri.

April 7, 1911.

1. PARTNERSHIP (§ 49) — EVIDENCE — DECLARATIONS.

Declarations of an alleged partner, in the absence of the other partner, are incompetent to prove partnership.

2. PARTNERSHIP (§ 241)—DISSOLUTION—LIABILITY OF RETIRING PARTNER.

A retiring partner will continue liable to former dealers for the firm's subsequent obligations, contracted in the name of the old firm, until such previous dealers have actual knowledge of the dissolution of the firm and the retirement of the partner.

Appeal from Circuit Court, Barry County; F. C. Johnston, Judge.

Action by the Keim & McMillan Hardware Company against L. Williams and others. From a judgment for one of defendants, plaintiff appeals. Affirmed.

H. T. Harrison, for appellant. Edwin L. Moore, for respondents.

NIXON, P. J.

This was an action on an open account instituted by the appellant corporation against the defendants as members of a partnership to recover the sum of $289,84. Defendants L. Williams, O. N. Williams, and ____ Williams made default. Defendant R. K. Hearne filed a demurrer, which was overruled. He also filed an answer under oath, denying that he was a member of the partnership when the debt was incurred. At the conclusion of plaintiff's evidence, this defendant also filed a demurrer to the evidence which was overruled. The defendant obtained judgment, from which the plaintiff in due time perfected its appeal to this court.

The amended petition is as follows (caption omitted): "Now comes the plaintiff and states that it is, and was at all the times hereinafter mentioned, a corporation, organized and doing business under the laws of the state of Missouri, and liable to sue and be sued as such in the courts of this state. That the defendants L. Williams and R. K. Hearne, were, on the 2d day of February, 1902, and up to the 5th day of August, 1905, engaged in the retail merchant's business at Boston, Barton county, Mo., as a partnership, and between said dates bought goods of the plaintiff and divers other persons and had them shipped to their store at Boston, aforesaid, where they received them into their stock of merchandise. That on or about said date, August 5, 1905, there was taken into the firm the two sons of L. Williams, and the firm was known afterwards as Williams' Sons & Co. And the defendant Hearne never gave any notice of his retirement from the firm, and the same continued to run as the firm of Williams' Sons & Co., as far as this plaintiff is informed, up to and including January 30, 1908, when the defendants ceased to purchase goods from this plaintiff. Said Hearne remaining in said partnership, so far as plaintiff is informed and believes. And for its cause of action plaintiff states that on or about the 2d day of February, 1902, at the special instance and request of defendants, plaintiff sold and delivered to defendant certain goods and merchandise of the value and for the price of $1,821.32, the items of which, as well as the dates when the various articles were sold, and the prices charged therefor, respectively, appear from the bill of items hereto annexed and marked `Exhibit A.' Plaintiff says that the prices charged for said goods are, and were at the time when said goods were sold and delivered, reasonable and proper, and defendants promised and agreed to pay the same, but, though often thereto requested, they have paid a part thereof, to wit, $1,531.48, which leaves a balance of $289.84, which they have failed and refused, and still fail and refuse, to pay the said balance, and every part thereof. Plaintiff says that it made demand of payment of said account and balance of $289.84 of and from the defendants on the 1st day of February, 1908. Wherefore plaintiff prays judgment against all the defendants for the sum of $289.84, with interest at the rate of 6 per cent. per annum from the 2d day of February, 1908, and for cost of suit." (Signature and Exhibit A omitted.)

The evidence offered by the appellant tended to show that on the 28th day of February, 1902, it opened an account upon its books with a partnership known as Williams & Hearne at Boston, Mo., and from that date until June 19, 1905, kept an open account in their name for goods furnished them from time to time during such period, and rendered Williams & Hearne monthly itemized statements of the goods so furnished. The goods were ordered, shipments made, and bills settled under the name of Williams & Hearne until the firm name was changed, in August, 1905, to Williams' Sons & Co., after which time the plaintiff transacted business with and sold goods to the firm of Williams' Sons & Co. The old firm of Williams & Hearne was dissolved, and two sons of Williams, together with Williams, organized a new partnership and subsequently carried on the business in the firm name of Williams' Sons & Co. Some time after August 5, 1905, appellant's account was carried forward by it in the name of Williams' Sons & Co. On February 1, 1908, the total debits amounted to $793.39, and, after deducting several payments that were made from time to time, there was a balance due the plaintiff at the time this action was instituted of $232.74 and interest. The plaintiff's Exhibit A filed with the petition and offered in evidence contained the account sued on, and in it Williams' Sons & Co. of Boston, Mo., were charged with being indebted to the plaintiff, the first item being a credit dated November 20, 1905, and the last item being a debit dated February 1, 1908; and the several items of merchandise, with credits, were carried in the account between those dates.

Defendant Hearne filed with his separate answer the following affidavit (caption, signature, etc., omitted): "R. K. Hearne, one of the above-named defendants, first being duly sworn, on his oath says that he was not at any of the times mentioned in plaintiff's amended petition in the above-entitled cause a member of any firm or partnership doing or transacting business under the firm name and style of Williams' Sons & Co., and that he is not a partner and never was a partner with any of the other defendants mentioned in said petition in the retail merchants business, or any other business at Boston, Mo., or anywhere else, and says that no partnership ever existed between this defendant and other defendants or any of them in any manner whatever, as alleged in said petition, or otherwise."

At the trial there was evidence offered that defendant Hearne furnished money to carry on the business, and held himself out as a member of the firm of Williams & Hearne; the principal contention of the parties being as to whether this money was a loan to Williams or capital stock of the firm of Williams & Hearne. There was no competent evidence offered that Hearne was actually a member of the firm of Williams' Sons & Co., or that he ever held himself out to the...