Moon Bros. Carriage Co. v. Devenish

• Decision Date: 22 March 1906
• Citation: 85 P. 17,42 Wash. 415
• Parties: MOON BROS. CARRIAGE CO. v. DEVENISH et al.
• Court: Washington Supreme Court

85 P. 17

42 Wash. 415

MOON BROS. CARRIAGE CO. v. DEVENISH et al.

Supreme Court of Washington

March 22, 1906

Appeal from Superior Court, Spokane County; Wm. A. Huneke, Judge.

Action by the Moon Bros. Carriage Company against O. G. Devenish and E. E. Plough. Judgment for plaintiff, and defendant Plough appeals. Affirmed.

Wm. T Stoll and B. B. Adams, for appellant.

Thomas Neill and W. H. Winfree, for respondent.

HADLEY, J.

This is an action to recover on account for goods sold and delivered. The complaint, in the usual form, alleges the amounts of sales, and the balance due and unpaid. It is also alleged that the sales were made between the 1st day of July and the 4th day of December, 1902, and that the defendants were during all that time and until the 3d day of February, 1903 copartners doing business under the firm name of Devenish Hardware Company. The defendant Plough answered separately and admitted the existence of the partnership at the time the goods were sold and delivered; but alleged that, after the indebtedness was contracted, to wit, on January 28, 1903 defendants dissolved partnership and that, by an instrument in writing, the defendant Devenish assumed and agreed to pay all debts of the partnership, including that held by the plaintiff, of which plaintiff had knowledge; that the plaintiff, without the knowledge or consent of defendant, accepted in payment of said indebtedness three promissory notes of the defendant Devenish, bearing date May 15, 1903, for specified amounts, and maturing, respectively, August 1, September 1, and October 20, 1903. The reply denies that plaintiff had any knowledge of any agreement on the part of defendant Devenish to assume the debts of the partnership. It is also denied that the promissory notes were accepted in payment of the debt, and it is alleged that they were accepted merely as evidence of the indebtedness and of the agreement to extend the time of its payment. On the above issues the cause was tried by the court without a jury and judgment was rendered against both defendants for the sum of $2,546.12 and costs. The defendant Plough has appealed.

It is assigned that the court erred in its sixth finding of fact. The finding was to the effect that, at the time the notes were given, respondent had no notice or knowledge of any agreement between the partners whereby Devenish had assumed the payment of the debts of the firm, but that it did have knowledge of the dissolution of the partnership. This finding should be considered in connection with the seventh finding upon which error is also assigned. That finding is, in substance, that the goods were sold by a traveling salesman of the name of Moore; that he had authority from respondent to fix the price and terms of sale that in April, 1903, Moore applied to appellant at Spokane to sell said firm more goods on the part of respondent, at which time appellant informed Moore that he (appellant) was no longer a member of the firm, and that Devenish had assumed all the liabilities of the firm, including the debt owing to respondent; that this conversation was prior to the execution of the notes, but that Moore had no power to collect or settle accounts and had no authority over this account after making the sale; that Moore did not notify respondent of this conversation, or of any facts therein stated; that all the dealings between the parties concerning this account, after the goods were sold, were had directly with respondent. The court also found in its fifth finding that the notes were given as the result of a request from Devenish, made on January 30, 1903, for an extension of time, at which time he advised respondent of the dissolution, but did not advise it that he had assumed the debts of the firm; that the notes were executed by Devenish under the firm name, and were taken to close the account, but were not accepted in payment of the indebtedness. It appears by the record that an exception was originally taken to the fifth finding, but by a stipulation filed it is stated that it was the intention to except to the sixth and seventh findings and not to the fifth and seventh, as stated in the original exceptions. There is, therefore, no exception to the fifth finding, and no error is assigned thereon. By that finding it is an established fact in the case that the...