Neale v. McKinstry

• Decision Date: 31 August 1841
• Citation: 7 Mo. 128
• Parties: NEALE v. MCKINSTRY.
• Court: Missouri Supreme Court

7 Mo. 128

NEALE

v.MCKINSTRY.

Supreme Court of Missouri.

August Term, 1841.

HAYDEN, for Appellant. 1st. That the court erred in permitting the note sued on to be read to the jury upon the proof adduced by plaintiff of its execution. 2nd. That the court erred in giving to the jury the instructions prayed for by plaintiff. 3rd. The court erred in not giving to the jury the instructions asked for by defendant. 4th. The court erred in overruling the motion for a new trial.

LEONARD, for Appellee. 1st. As to third persons, a partnership continues until proper notice of its dissolution is given. Cary on Part. 181-2-3; Godfrey v. Turnbull, 1 Esp. 371; Parkin v. Crowther, 3 Esp. 248; Gow on Part. 306-307; Ketchum v. Clark, 6 Johns. R. 144; 3 Littell's R. 423; 2 Starkie's Ev. 589.2nd. While a general notice of the dissolution is sufficient for the world at large. Wright and others v. Pulham, 2 Chitty's R. 121; Lansons v. Ten Eyck, 2 Johns. R. 300; 6 Johns. R. 147-148; Martin v. Walton & Co., 1 McCord's R. 16; Graham v. Thompson, Peake, 42; Graham v. Hope, Peake, 154. Actual notice must be given to those who have dealt with the firm. Cary on Partn. 181-2-3, and cases cited above. 3rd. In the case at bar, there had been mutual dealings and credits between the plaintiff and defendants, and no notice, either general or actual, had been given of the dissolution of the partnership. 4th. The proof of the execution of the note sued on, was sufficient to entitle the note to go in evidence to the jury. 1 Phil. Ev. 413, note a.

NAPTON, J.

This was a petition in debt brought by Robert McKinstry, surviving partner of the firm of Robert McKintry & Co., against Daniel B. Neale, of the firm of Osburn & Neale. The note upon which suit was brought, is dated 21st September, 1836, and payable one day after date, for value received, and signed ““Osburn & Neale.” Defendant plead nil debet and non est factum, verified by affidavit. On the trial it appeared that Milton, Osburn and Daniel B. Neale, were in partnership in the business of tavern-keeping, in the town of Benton, in the State of Mississippi, during the year 1835, under the style of ““Osburn & Neale.” Robert McKinstry & John McKinstry were merchants in the same town, doing business under the style of “Robert McKinstry & Co.” John McKinstry died in 1836, and the note sued on was given by Osburn to close mutual accounts between the firm of Osburn & Neale and Robert McKinstry & Co. The note was given in 1836, about eight months after Osburn & Neale had ceased to do business as tavern-keepers in Benton. There was evidence given by the plaintiff to show that no notice of the dissolution of the firm of Osburn & Neale had been given McKinstry & Co., and that there had been mutual dealings between the firms during the existence of the partnership. The plaintiff offered to prove the execution of the note by the deposition of the subscribing witness, who testified, that the original note of which a copy was given in his deposition, was executed in his presence by Milton Osburn, one of the supposed firm of ““““Osburn & Neale,” and by him signed and delivered. This evidence was objected to by defendant, but was allowed to go to the jury. The defendant proved that the business of tavern-keeping was discontinued by Osburn & Neale, at the expiration of the year 1835, and that even during the existence of the partnership, Osburn had alone conducted the business. Neale being a citizen and resident of Missouri. It was also proved, that McKinstry was a guest of the tavern, both whilst it was conducted by Osburn & Neale, and after it came into the hands of their successors. At the instance of the plaintiff, the court instructed the jury, that if they believe the note sued on was given by Milton Osburn, and that a partnership had previously existed between Osburn & Neale, it will be presumed to have been given for a partnership debt, unless the contrary be shown: that if Osburn & Neale were in the habit of dealing with the plaintiffs, and never gave any special notice of the dissolution of the partnership to the plaintiffs, they are liable on this note: that to render the dissolution of the partnership effectual, notice must be given of it to the world, and if no such notice was given, the firm may be bound by a contract made by one partner in the usual course of business, and in the name of the firm, with a person who had no notice of the dissolution, and that the mere discontinuance of the business of tavern-keeping in Benton was not of itself sufficient notice of the dissolution of the partnership. Several other instructions were given, which seem to be to the same purport, and therefore not material to be noticed. The court also instructed the jury, that there was no evidence of any notice of the dissolution of the partnership ever given to plaintiff. At the request of the defendant, the...