Lucas v. Cole

• Decision Date: 31 July 1874
• Citation: Lucas v. Cole, 57 Mo. 143 (Mo. 1874)
• Parties: WM. LUCAS, et al., Respondents, v. F. M. COLE, et al., Appellants.
• Court: Missouri Supreme Court

57 Mo. 143

WM. LUCAS, et al., Respondents,

v.F. M. COLE, et al., Appellants.

Supreme Court of Missouri.

July Term, 1874.

Appeal from St. Clair Circuit Court.

Burdett & Smith, for Appellants.

R. F. Buller, for Respondents.

NAPTON, Judge, delivered the opinion of the court.

This suit was on a note of which the following is a copy:

“St. Louis, Mo., Oct. 27th, 1860.

Six months after date, we, the subscribers, Francis M. Cole and Johnson Dawson of Indian Point, County of St. Clair, State of Missouri, promise to pay to Lucas, Thompson & Co., a firm composed of William Lucas, Charles L. Thompson & John Hicks, Jr., two hundred and eighty-three and seventy-eight hundred dollars for value received, negotiable and payable without defalcation or discount, with interest at the rate often per cent. per annum.

(Signed)

F. M. Cole,

John Dawson.”

The defendant, Dawson, denied the execution of the note and denied the partnership with Cole, at the time of its execution.It appears that Cole had been doing business at Indian Point as a merchant, for some years previous to Oct., 1860, and during that month and before the execution of the note sued on, a partnership between him and Dawson was proposed and discussed and agreed on; that Cole went down to St. Louis and bought the goods for which the note was given, and signed Dawson's name; that upon his return Dawson kept the books of the concern in the name of Cole & Dawson, and supposed himself to be a partner, until in December, when a difference of opinion arose between Cole & Dawson, and as Dawson supposed, the partnership never was consummated.And this was the only question in the case, viz: whether a partnership actually existed between Cole & Dawson at the time of the execution of the note.

The testimony is not preserved on the record, except as to its general tendency, and the only point here, arises on the instructions.

The court declared the law as follows: “If the defendants, Cole & Dawson, on or about the middle of Oct., 1860, and before the date of the note sued on, entered into an agreement to sell goods in co-partnership at Indian Point, and after said agreement was made, the defendant, Cole, represented to plaintiffs that they were in co-partnership and bought goods and gave a note in the joint names of both defendants, the court will find the issue for the plaintiffs, even though the court may believe from the evidence, that no invoice was taken, and that the said co-partnership was dissolved soon after the ...