Lybrand v. Watkins Hardware Company
| Decision Date | 24 April 1922 |
| Docket Number | 320 |
| Citation | 239 S.W. 1053,153 Ark. 266 |
| Parties | LYBRAND v. WATKINS HARDWARE COMPANY |
| Court | Arkansas Supreme Court |
Appeal from Polk Circuit Court; James S. Steel, Judge; affirmed.
Judgment affirmed.
Norwood & Alley, for appellant.
The itemized statement required by appellant at the time he entered into the contract makes clear the intention of the parties, and that he became liable only for such debts of the old firm as were there exhibited. The agreement should be considered from the circumstances and viewpoint of the parties at the time. 90 Ark. 272; 113 Id. 174; Wisconsin & Ark. Lumber Co. v. Fitzhugh, 151 Ark. 81; 105 Ark. 421; 3 Id. 222; 63 Id. 63.
An incoming partner is not bound by the previous debts of the concern unless he makes himself so by express agreement. 49 Ark. 457; 77 Cal. 440; 64 Ga. 243; 101 Ill.App. 23; 27 Md 645; 78 Va. 567; 107 N.Y. 260.
The testimony of appellant to the effect that he only assumed his part of the debts of the old firm mentioned in the exhibit to the contract was erroneously excluded. It was admissible to explain any apparent ambiguity or conflict raised by the eighth paragraph, and raised a jury question. 89 Ark. 368; 81 Id. 337.
Minor Pipkin, for appellee.
The Watkins Hardware Company brought this suit in the circuit court against B. Hope and Early, Jones & Lybrand, a partnership composed of J. H. Early, J. E. Jones and L. H Lybrand, to recover the sum of $ 1,524.43 for goods, wares and merchandise.
The firm of Early & Jones was the principal contractor for the construction of a highway in Polk County, Ark., and B. Hope was a subcontractor. The firm of Early & Jones, by a contract in writing, made itself responsible to the Watkins Hardware Company for the account of B. Hope. The latter purchased hardware from the Watkins Hardware Company to the amount of $ 1,524.43, which was due and unpaid at the time this suit was brought. Subsequently $ 1,216.61 was paid on the account leaving a balance due at the time of the trial of the case of $ 307.88.
On the 12th day of October, 1920, J. H. Early and J. E. Jones entered into a contract with L. H. Lybrand whereby he became a member of the firm and interested in the construction of the road to be improved by the firm in Polk County, Ark. The written contract, after reciting that Lybrand had purchased a one-third interest in the firm and in the aforementioned contract recites that Lybrand assumes "a one-third of the liabilities and indebtedness of said firm, and an itemized statement of all money, debts, mules and horses, machinery and tools and all other property owned by said firm, Early & Jones, up to date, hereto attached and made a part hereof," etc.
The contract of the firm with the road improvement district is attached to the contract of partnership and forms a part of it. Sec. 8 of the partnership contract reads as follows: "It is further agreed and understood by the parties hereto that all machinery, tools, horses and mules, money and chattels, and liabilities incurred and indebtedness owed under the former firm of Early & Jones is hereby assumed jointly by the firm of Early, Jones & Lybrand."
The defendant, Lybrand, offered to introduce in evidence a list of the debts owed by Early & Jones at the time he was received into the partnership and to testify that he only contracted to pay the indebtedness of the old firm which was exhibited to him at that time.
The court sustained an objection to this testimony offered by the defendant and directed the jury to return a, verdict for the plaintiff.
L. H. Lybrand was the only member of the firm served with summons, and judgment was rendered against him in favor of the plaintiff in the sum of $ 307.80. To reverse that judgment, Lybrand has duly prosecuted an appeal to this court.
Lybrand seeks to reverse the judgment on the...
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Riddle v. Holcomb
...was improper to show that appellant's debt was excepted from the list of the debts to be paid. The case of Lybrand v. Watkins Hardware Co., 153 Ark. 266, 239 S. W. 1053, is cited as supporting this view. That case is not in point, however, for the reason that the testimony was not offered t......
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