Leithauser v. Baumeister

• Decision Date: 24 August 1891
• Citation: 47 Minn. 151,49 N.W. 660
• Parties: LEITHAUSER v BAUMEISTER ET AL.
• Court: Minnesota Supreme Court

47 Minn. 151

49 N.W. 660

LEITHAUSERvBAUMEISTER ET AL.

Supreme Court of Minnesota.

Aug. 24, 1891.

(Syllabus by the Court.)

1. A member of a partnership who has obligated himself by contract with his copartners to personally pay a partnership debt has no authority, by virtue of the partnership relation, to give a partnership note therefor; and if the creditor knowing such facts accepts such a note, extending the time for payment, he thereby discharges the partners not consenting thereto, they having the rights of sureties.

2. Findings of fact held to be contrary to the evidence.

Appeal from municipal court of St. Paul; CORY, Judge.

Action by Matt Leithauser against William Baumeister and others. Judgment for plaintiff. Defendants appeal. Reversed.

A. G. Briggs, for appellants.

F. W. Zollman, for respondent.

DICKINSON, J.

Prior to November 30, 1887, the three defendants were copartners, engaged in business under the name of John Comes & Co., and as such copartners they were indebted to a partnership firm, (Matt Leithauser & Co.,) to whose rights the plaintiff has succeeded in the sum of $280. The partnership was dissolved at the time above stated. This action is to recover on that indebtedness. The defendants, Nagler and Baumeister, plead in defense that, by a contract between the defendants at the time of the dissolution, Comes became obligated to pay this debt; that after the dissolution Comes formed another partnership with one Schneider, under the same partnership name as that of the former firm, John Comes & Co., all of which, as is alleged, was known to the plaintiff; and that he accepted from Comes a promissory note of the new firm, signed in its partnership name, payable 90 days thereafter, in satisfaction of the indebtedness of the defendants. The court found in general terms that, except as to the allegation of the dissolution of the defendants' partnership, the allegations of the answer were not proved. This finding was erroneous in some particulars, and it cannot be said that the erroneous conclusion may not have affected the decision of the case. The evidence conclusively showed, and without dispute, not only that the partnership of the defendants had been dissolved when (as the fact is admitted to have been) the plaintiff in February, 1888, took from Comes a note, signed in the partnership name of that firm, for the amount of the debt, payable 90 days after date, with interest at the rate of 8 per cent. per annum, but that a settlement had been made between the copartners, and an agreement entered into which, as between themselves, obligated Comes to pay this partnership debt to the plaintiff. Moreover, the evidence on the part of the defendants (appellants) went to show that the plaintiff had been informed of this fact, and this is not really controverted in the evidence on the part of the plaintiff. On the contrary, he admits in his testimony that he “knew of the settlement they had,” but did not know of the dissolution of the partnership. He admits that “Comes gave the note in the partnership name, because he said he did not want to stand by his agreement with the other parties because they did not stand by theirs. *** He did not want to pay this claim all by himself, because they didn't live up to their agreement.” We think that the case showed, contrary to the finding of the court, both that Comes had assumed the...