Patterson v. Camden
Decision Date | 31 March 1857 |
Citation | 25 Mo. 13 |
Parties | PATTERSON et al., Plaintiffs in Error, v. CAMDEN, Defendant in Error. |
Court | Missouri Supreme Court |
1. In determining the meaning of a written instrument, the acts of the parties thereto are entitled to great weight.
2. Where a partnership is dissolved and a new partnership formed, the debts of the old firm may, by consent of all parties--the creditors, the old firm and the new--be transferred to the new firm, and the old firm may be discharged.
Error to St. Louis Circuit Court.
This was an action of assumpsit, commenced in the St. Louis Circuit Court in the year 1841. The declaration consisted of six counts, four of which charged the defendant, John B. Camden, as drawer of two bills of exchange, of which the following are copies:
“Accepted, payable at the counting-house of Buckner, Stanton & Co., New Orleans. [Signed] T. T. & H. Leavel.”
“Accepted, payable at the banking-house of Forsyth & Limerick, New Orleans. [[[[[Signed] T. T. & H. Leavel.”
There were also counts for goods sold, money had and received, etc., and upon an account stated. To the first four counts the defendant pleaded the general issue, set-off, and payment; he also pleaded that the sums sought to be recovered were for articles in a store account, and that the cause of action did not accrue within two years before the commencement of the suit.
At the trial evidence was given proving, and tending to prove, that prior to the 5th day of February, 1839, a firm existed in Manchester (afterwards called Yazoo City), in the State of Mississippi, composed of Thomas T. Leavel, John B. Camden, and Marbel Camden, under the name and style of T. T. Leavel & Co.; that Leavel was the acting partner, the Camdens residing in St. Louis; that during the period of the partnership the firm of T. T. Leavel & Co. had large transactions with the plaintiffs; that in January, 1839, the firm of T. T. Leavel & Co. ordered of plaintiffs brandy to the amount of $1,468.75, which was sent them, and the expenses of porterage and insurance on it paid by plaintiffs, amounting to $44.50. On the 5th of February, 1839, the partnership of T. T. Leavel & Co. was dissolved, T. T. Leavel having bought out the interest of the Camdens for $11,000, and the following notice was published in the paper published in Manchester, and also in the United States Gazette at Philadelphia: That immediately upon the dissolution of the firm of T. T. Leavel & Co. a new firm was formed of T. T. Leavel and his brother, under the style of T. T. & H. Leavel; that T. T. Leavel went to Philadelphia in March, 1839, when he met John B. Camden; and that while there, with the knowledge and approbation of said Camden, he drew drafts in settlement of the liabilities of the firm of T. T. Leavel & Co. to plaintiffs, in the name of “T. T. Leavel & Co., in liquidation;” that this was done in order to give the old firm time. Plaintiffs introduced evidence tending to prove that the draft for $1,636.35 was given for the brandy bought before the dissolution on the 15th of January, 1839, with interest and exchange added; and that the draft for $1,706.65 was given in settlement of another draft of $1,500, dated at Philadelphia, March 8th, 1839, and drawn by T. T. Leavel on T. T. & H. Leavel, in favor of J. B. and M. Camden, and endorsed by them, which was at its date delivered by T. T. Leavel and J. B. Camden to plaintiff, Robert Patterson, he at the time paying them the amount of the same in cash for the purpose of liquidating other liabilities of the firm of T. T. Leavel & Co. to other persons, which draft Robert Patterson at once transferred to plaintiffs; that T. T. Leavel had drawn in the name of “T. T. Leavel & Co., in liquidation,” other drafts as well as the ones in suit, with the knowledge of defendant, and without objection; as, also, that due notice was given of the presentment of the drafts and the non-payment thereof. Defendant introduced evidence tending to prove that Thomas T. Leavel, in 1838, visited St. Louis for the purpose of buying out the interest of the Camdens in the firm of T. T. Leavel & Co., and offered therefor $15,000; that the firm of T. T. Leavel & Co. did not owe the plaintiffs anything; also, various receipts of plaintiffs for money paid by T. T. Leavel & Co.; also, a memorandum signed by T. T. Leavel, dated at Philadelphia, March 19th, 1839, of endorsements by J. B. and M. Camden, of various drafts of T. T. & H. Leavel, which were given to settle up the old business of T. T. Leavel & Co.
The plaintiffs asked the following instructions: The court thereupon gave the third instruction asked for, but refused to give the first, second, fourth, fifth, sixth and seventh instructions asked by plaintiffs.
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