"1.
Prior to April 17, 1884, the said J. C. Dowd owned and
operated a planing mill in the city of Atchison, the building
being upon leased ground, and the machinery being contained
in said building. J. C. Dowd was indebted to James Nesbit
and also to Albert Bracke in considerable sums of money, and
the indebtedness was secured by chattel mortgages upon said
planing-mill property in favor of each of said creditors. J
C. Dowd also became indebted to Seaton & Lea, but the
debt was not in any way secured.
"2.
On April 17, 1884, Norman E. Yaple purchased a one-fourth
interest in said planing-mill property for the sum of $ 700,
and from that time the business was conducted in the name of
J. C. Dowd & Co., and on June 14, 1884, the plaintiff,
Myron L. Stephens, purchased of J. C. Dowd another one-fourth
interest in said planing-mill property for the sum of $ 700,
of which about the sum of $ 600 was paid under the written
agreement, a copy of which is set forth as 'Exhibit
A' to the plaintiff's petition. Neither Norman E.
Yaple nor the plaintiff ever agreed to assume any part of the
indebtedness of J. C. Dowd mentioned in conclusion of fact 1.
"3.
Although it was provided by the agreement of June 14, 1884,
that the name of the firm should be known as J. C. Dowd &
Co., yet the business was conducted principally in the name
of J. C. Dowd, accounts for lumber and material being usually
charged to him, and he paying the same from the earnings of
the planing-mill in some instances, and in others giving his
individual promissory note therefor. The plaintiff did not
wish it to be generally known that he was a partner in the
said firm, and this was one of the reasons for incurring the
liabilities in the individual name of J. C. Dowd.
"4.
On July 15th, 1884, J. C. Dowd executed his promissory note
to L. F. Bird, for money obtained from said Bird, for the use
and benefit of the firm, and he at the same time executed to
Bird a chattel mortgage upon the planing-mill property to
secure said indebtedness. This note, and the mortgage
securing the same, were executed by J. C. Dowd, with the
knowledge and consent of the plaintiff, Myron L. Stephens,
and Norman E. Yaple, and the money was used in the firm
business, and for its benefit. The amount of money so
obtained on said note was $ 200, which was payable October
15, 1884, with interest at 12 per cent. per annum from the
date of the note and mortgage.
"5.
The firm of J. C. Dowd & Co., consisting of J. C. Dowd,
Norman E. Yaple, and the plaintiff, Myron L. Stephens, also
incurred indebtedness to W. P. Rounds & Co., and another
indebtedness to Hill, Clark & Co., in the running of said
business. The claim of W. P. Rounds & Co. was upon book
account for lumber and material furnished to said
planing-mill, and the claim of Hill, Clark & Co. was
principally for machinery for the planing-mill, for which, on
July 28, 1884, the defendants, under the name of J. C. Dowd
& Co., executed their promissory note to Hill, Clark
& Co. for the sum of $ 300, payable four months after
date, with interest at 8 per cent. per annum. Said firm also
became indebted to Hill, Clark & Co. in the sum of $
38.41, being a balance of book account, the last item thereof
being a credit of date October 21, 1884.
"6.
In September, 1884, Norman E. Yaple became anxious to dispose
of his interest in said firm. The chattel-mortgage creditors,
Albert Bracke, James Nesbit, and L. F. Bird, were also
anxious to realize on their claims. J. C. Dowd consulted with
plaintiff, Myron L. Stephens, about the payment or securing
of said chattel-mortgage claims, by obtaining a new loan, and
also talked to plaintiff, Myron L. Stephens, about the
purchase of the interest of Norman E. Yaple, and he told the
plaintiff, Myron L. Stephens, that Hiram Yaple would advance
money to pay off the chattel-mortgage claims if he, the
plaintiff, would buy out the interest of Norman E. Yaple, who
was his son. The plaintiff, Myron L. Stephens, never
consented to the purchase of the interest of Norman E. Yaple,
but he did agree that the mortgages should be satisfied, and
that a new mortgage might be given therefor.
"7.
The chattel-mortgage claims amounted to $ 720, and the
interest of Norman E. Yaple was still valued at $ 700. J. C.
Dowd, on October 7, 1884, executed his two certain promissory
notes to Hiram Yaple, one for $ 720 and the other for $ 700,
each bearing interest at 10 per cent. from date; at the same
time he executed a chattel mortgage upon said planing-mill to
Hiram Yaple, to secure said two promissory notes, a copy of
which is annexed to the petition of Myron L. Stephens,
plaintiff, as 'Exhibit B,' and Hiram Yaple caused to
be paid the three chattel-mortgage claims to James Nesbit,
Albert Bracke, and L. F. Bird, respectively, amounting in all
to the sum of $ 720. Hiram Yaple at the same time executed to
his son, Norman E. Yaple, his promissory note for $ 700, for
the interest of Norman E. Yaple, which J. C. Dowd claimed to
be purchased for him and the plaintiff, Myron L. Stephens.
Norman E. Yaple was indebted to Hiram Yaple in about the sum
of $ 375, at the time, and a credit was entered upon said
note for that sum.
"8.
On October 21, 1884, Myron L. Stephens executed to his
father, W. M. Stephens, a chattel mortgage upon his interest
in said planing-mill property, for the sum of $ 796, to
secure four certain promissory notes which said M. L.
Stephens had previously executed to said W. M. Stephens,
amounting in the aggregate to said sum of $ 796; said sum of
$ 796, representing only the individual indebtedness of Myron
L. Stephens to his father W. M. Stephens, and said mortgage
was executed without the knowledge and without the consent of
J. C. Dowd and Norman E. Yaple, or either of them.
"9.
On December 13, 1884, Seaton & Lea obtained judgment
against J. C. Dowd, before a justice of the peace of Atchison
county, for the sum of $ 163.82, and upon the same day caused
execution to be levied upon the individual one-half interest
of J. C. Dowd in said planing-mill property.
"10.
In December, 1884, Hill, Clark & Co. commenced an action
against J. C. Dowd, Myron L. Stephens and Norman E. Yaple as
partners, in this court, on their said claim, and on the 16th
day of December, 1884, caused an order of attachment to be
levied upon said planing-mill property to secure their claim.
"11.
On December 19, 1884, W. P. Rounds & Co. obtained
judgment against J. C. Dowd, Norman E. Yaple, and M. L.
Stephens, as partners, before a justice of the peace of this
county, for the sum of $ 289.50 debt, and $ 7.40, costs, and
on December 30, 1884, caused execution to be levied upon said
planing-mill property to satisfy their said judgment.
"12.
When said mortgages of October 7, and October 21, 1884, were
executed, said firm of J. C. Dowd & Co. was insolvent.
"13.
On October 7, 1884, when Hiram Yaple received said notes and
mortgages, he knew that the firm-name was J. C. Dowd &,
Co., and who were the members of said firm, and that said
firm of J. C. Dowd & Co. was unable to pay its debts, as
they matured, and Norman E. Yaple was largely indebted to him
besides, but he had no personal knowledge of the claims of
Hill, Clark & Co. and W. P. Rounds & Co.
"14.
Said mortgage of October 7, 1884, was executed by J. C. Dowd
and accepted by Hiram Yaple, in order to give Hiram Yaple a
lien upon said property that should be prior to, and cut out
any claim of partnership creditors to the extent of the
claims of James Nesbit and Albert Bracke, and the said
purchase-price of Norman E. Yaple's interest. And the
said mortgage of October 21, 1884, was given by the
plaintiff, M. L. Stephens, and accepted by W. M. Stephens for
the purpose of cutting out and defeating any claim of the
creditors of the firm of J. C. Dowd & Co. upon the
interest of M. L. Stephens in said property.
"15.
After June 14, 1885, part of the indebtedness to Albert
Bracke and James Nesbit was paid out of the...
