Miller v. Wagenhauser
| Decision Date | 19 May 1885 |
| Citation | 18 Mo.App. 11 |
| Parties | HERMANN MILLER, Respondent, v. ANTON WAGENHAUSER, Appellant. |
| Court | Missouri Court of Appeals |
APPEAL from the St. Louis Circuit Court.--LUBKE, J.
Affirmed.
LOUIS GOTTSCHALK, for the appellant.
LEO RASSIEUR and D. TIFFANY, for the respondent.
When a partner purchases the interest of his copartner, if this expresses the whole transaction, it follows of course that the purchaser assumes the liabilities of the concern, since he gets only the net share of his vendor after all joint liabilities are discharged. But if the agreement goes further, and expressly stipulates that the purchasing partner is to pay certain debts specifically described, this may reasonably be held to imply, without some overruling element, that, even as between themselves, other debts and liabilities remain a charge against both. This follows the well worn maxim, expressio unius est exclusio alterius. So much, and no more, is taught by the authorities cited for the defendant, to show that the naked fact of the plaintiff's purchase of the defendant's interest in the partnership concern, obliged him to pay all the joint liabilities, without exception.
These litigants were equal partners in a brewing and malting business, and, on February 23, 1884, the plaintiff bought out the defendant's interest. A suit was pending in the U. S. circuit court in favor of F. Anscheutz, and against the firm, for damages in the breach of their contract for the purchase of ice. This suit ended in a judgment for the plaintiff, after the dissolution of the firm. The present plaintiff, having paid the sum of $1,643.58 in satisfaction of that judgment, instituted this proceeding to compel a contribution of one half from the defendant.
The petition fully sets forth the rendition of the judgment against the plaintiff and defendant, and alleges that the plaintiff was required to pay it, and did pay it. This shows, prima facie, a joint liability, and though the petition is inartificially drawn, enough appears to show a cause of action. There is no reference to the existence of a partnership relation at any time, and therefore no need of any statement about the terms of dissolution, or the consequent obligation of either party touching the firm liabilities. The objection of insufficiency in the petition is not well taken. The controlling question in the controversy is as to the proper interpre tation of the agreement for dissolution, which is in the following words: “Whereas Anton Wagenhauser has this day sold and transferred unto Hermann Miller, all his right, title and interest in and to the property, assets and business of the firm of Miller & Wagenhauser, which firm has heretofore been engaged in the malting and brewing business in the city of St. Louis, and by mutual consent this day has been dissolved, and whereas said Hermann Miller has assumed all debts and liabilities of the said firm, now, therefore, in consideration of the premises and of the sum of one dollar paid, the said Hermann Miller hereby covenants and agrees to and with said Anton Wagenhauser that he will pay and discharge all debts of said firm, as per the books thereof, and, also the rental of a certain lease made by Albert Todd to said Miller & Wagenhauser as reserved in said lease two lots 48 4-12 feet front and 19 4-12 feet front by a depth eastwardly in block 52, dated September 1st, 1882. Also, to assume the payment of a certain note made by them to Charles T. Behrens for $5,890.00, dated January 23, 1882, and secured by deed of trust, recorded in Book 672, page 104, of the Recorder's office of the city of St. Louis.
In witness whereof I have hereunto set my hand, this 23rd day of February, 1884.
HERMANN MILLER. [SEAL.]
Witness: BENJ. A. SUPPAN.”
It is contended for the defendant, that the recital, “whereas said Hermann Miller has assumed all debts and liabilities of the said firm,” shows the intention of the parties to have been that the plaintiff was to discharge all liabilities of the concern, whether liquidated or unliquidated, whether matured or unmatured, and whether they appear upon the books or not. It is further insisted that the subsequent...
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