Kuhn v. Weil

• Decision Date: 31 October 1880
• Parties: KUHN v. WEIL et al., Appellants.
• Court: Missouri Supreme Court

73 Mo. 213

KUHN

v.WEIL et al., Appellants.

Supreme Court of Missouri.

October Term, 1880.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

J. M. & C. H. Krum and C. F. Moulton for appellants.

John McGaffey, T. A. & H. M. Post and L. A. Steber for respondent.

1. Defendants were estopped from setting up the fact of a partial levy by reason of their answer itself, whereby it is admitted in terms that under their writ the sheriff did attach and seize upon the property described in the petition. Herman on Estoppel, § 343; Vandervoort v. Smith, 2 Caines 155; Greenleaf Ev., §§ 27, 205; 1 Phil. Ev., 454, note 129.

2. No clearer case of a confederated plan carried out in concert to seize the whole stock and divide the proceeds could be established by testimony. It was in evidence on both sides without any conflict that the defendant, Joseph Weil, concerted and co-operated with the others of Massman's attaching creditors in swearing out the several writs of attachment; that in pursuance of such concerted action, Joseph Weil, with the other creditors, employed the same attorney to bring the suits, and procured the same officer to make the levies; that the levies were made one after another as fast as the papers could be prepared, on the 9th day of November, 1871, between the hours of nine and a half and eleven a. m.; that by virtue of these levies and after they were all made, the goods were seized, carried away and sold, and the proceeds of the sale divided among the attaching parties; that one of these writs was sued out in favor of the defendants Weil; that this was levied upon all the goods; that Joseph Weil personally gave the deputy sheriff directions in regard to the seizure. Under these circumstances the Weils are liable for the whole damages. In trespass all are principals, and those who direct a trespass or assent to it for their benefit, are equally liable with those who commit it; nor is it necessary that a party should actually participate in the act of seizing and removing the property; if he directs or assents to the trespass, as by directing the sheriff to levy upon the property, he is liable. Canifax v. Chapman, 7 Mo. 176; Page v. Freeman, 19 Mo. 423; Allred v. Bray, 41 Mo. 487; McMannus v. Lee, 43 Mo. 208; Murphy v. Wilson, 44 Mo. 322; Perrin v. Claflin, 11 Mo. 14; McNeeley v. Hunton, 30 Mo. 332; Bliss Code Plead., § 82; 1 Chitty Plead., 85, 87, 185; Cooley Torts, p. 135; Goetz v. Ambs, 27 Mo. 32; Dameron v. Williams, 7 Mo. 141; 2 Greenleaf Ev., § 621; Mandlebaum v. Russell, 4 Neb. 351; Berry v. Fletcher, 1 Dill. 671; Smith v. Felt, 50 Barb. (N. Y.) 612; Lewis v. Johns, 34 Cal. 629; Berry v. Kelly, 4 Rob. (N. Y.) 106; Eddy v. Howard, 23 Iowa 183; Stone v. Dickinson, 5 Allen 9; Ously v. Hardin, 23 Ill. 403; McCarron v. O'Connell, 7 Cal. 152; Carney v. Reed, 11 Ind. 417; Bard v. Yohn, 26 Pa. St. 489; Ellis v. Howard, 17 Vt. 330; Brewster v. Gauss, 37 Mo. 518.

3. Plaintiff's instruction number 5, to the effect that if Kuhn made his advancements on the faith of the composition papers and receipts signed by the Weils, the latter were estopped from setting up any claim to the goods, was properly given. Garnhart v. Finney, 40 Mo. 449; Chouteau v. Goddin, 39 Mo. 229; Taylor v. Zepp, 14 Mo. 482; Newman v. Hook, 37 Mo. 207; Bunce v. Beck, 46 Mo. 327; O'Shea v. Collier White Lead Co., 42 Mo. 403; Smith v. Owens, 21 Cal. 11; Hodgson v. Wightman, 1 Hurlst. & Colt. 810.

HENRY, J.

This is an action originally against Joseph and Max Weil, and other defendants, for unlawfully seizing and converting to their own use a stock of goods, the property of plaintiff, alleged to be of the value of $11.000. The suit was dismissed as to all the other defendants, and Joseph and Max Weil filed their answer, denying generally the allegations of the petition, and alleging specifically the seizure of the goods as the property of one Massman, by the sheriff of St. Louis county, under an attachment in their favor against said Massman, and that before the attachment was issued, Massman, in order to defraud his creditors, executed a bill of sale of the goods in controversy to the plaintiff, and that defendants were creditors of said Massman. There was a replication denying the alleged fraud, and on the issues thus made, there was a trial which resulted in a verdict and judgment for plaintiff, which, on appeal to the court of appeals, was affirmed, and defendants have prosecuted an appeal to this court.

1. PRACTICE: admissions in the pleadings: evidence.

One of the principal questions discussed in the brief of appellants' counsel cannot be considered on its merits. It is settled by the pleadings. The seizure of the goods is admitted by the answer, and all the evidence tending to show that the property had been previously seized under other attachments issued at the suit of other creditors, was inadmissible under the pleadings, and if defendants desired to avail themselves of such defense, they should have amended their answer. They admit and justify the seizure under their attachment, and cannot now be heard to say that their answer is untrue.

We might dispose of this cause by simply adopting the opinion delivered by the court of appeals, but will notice briefly one of the points made in the brief, because so strenuously urged upon our attention.

2. PARTNERSHIP: partner's liability for torts of copartners in the business.

By the second instruction the jury were told that plaintiff was entitled to recover in this action against the defendants, or either of them, who authorized or sanctioned such seizure. The defendants were Joseph and Max Weil, partners in business, and the attachment suit, under which the goods were seized, was instituted by the firm, or by Joseph Weil in the name of the firm, on an indebtedness to the firm; and the institution of such a suit by one of the co-partners is within the scope of his authority. For such torts as are committed by one partner, in the course of the business of the partnership, all are liable, although the others may not have expressly assented to the act. Story on Part., § 166. Each partner is a general agent for the other as to all matters within the scope of the partnership dealings, and has all necessary authority to carry on the partnership and do such things as are usually done by partners, in the business they are engaged in. Story on Part., § 101. Under this general authority, the right of one partner in a mercantile firm, without consulting his co-partners, to sue in the name of all the co-partners for a debt due the firm, either in an ordinary action, or one in attachment, cannot be questioned, and it is a logical conclusion from the elementary doctrines announced by Story, and well sustained by the authorities, that all the co-partners are liable to any one whose goods have been wrongfully seized under such attachment by the direction of the partner instituting the suit.

If the defendants were strangers to each other, and were sued for a joint trespass, and such an instruction as the one complained of were given, it might be open to the criticism made by defendants' counsel; but under the circumstances of this case, the words “aut...