| Mo. | Jul 15, 1873
delivered the opinion of the court.
This case was submitted to the court for determination upon an agreed statement of facts, by which it appears, that B. C. Brown, A. W. Morrison, John L. Morrison, the plaintiffs, arid one E. B. Butler, were engaged-as partners in putting up tobacco in Howard County, Missouri, and shipping the same to a foreign market for sale. The tobacco was sent to England for sale, and remained unsold in the hands of a commission merchant there. It was agreed between the partners, that the tobacco should not be sold without their joint consent, and that it should not be drawn against by either partner, so that a forced sale should not take place by reason of such draft.
Butler, afterwards, without the consent of the other partners, drew a draft on the commission merchant in England, but gave a responsible endorser on the bill, with the understanding that the drawing of the bill should not'force the tobacco on the market.
The bill was sold when the difference between gold and legal tender was very large..
The proceeds were invested by Butler in other tobacco, and he suffered a large loss in consequence.
Hutchinson, since deceased, became the purchaser of the interest of Butler in the tobacco, and the question between the parties is, as to whether Hutchinson, as assignee of Butler shall be charged with the difference between gold and treasury notes at the time the bill was drawn, or be charged with merely the interest in gold.
The court below held, that defendant was not liable for the difference between gold and treasury notes, but was chargable with interest only.
It is generally true in partnership transactions, that one partner cannot speculate with, the partnership funds for his own individual benefit. And if either of the partners have violated the terms of thepartnership contract, and have abused the trust with which as a partner he was clothed, and have partnership assets that he has not accounted for, he will be liable in an appropriate proceeding.
If a partner without the consent of the firm withdraws a portion of the assets, and invests in a new or different.enterprise, he may be compelled to account to the other partners for a proportionate share of the profits.
The agreed case admits that the sale of the tobacco was not hastened by Butler’s drawing the bill, and therefore that act had no influence on its sale.
Had the bill not been drawn, as was the agreement, then all that was received from the commission merchant would have been equally divided between the partners.
As the commission merchant charged interest on the advance made to Butler, and this was deducted from the amount received on the sale of the tobacco, this interest would constitute the measure of damages, which Butler should pay to the other partners.
If Butler is to be held liable for drawing the bill as on a
It is not pretended that the partnership suffered any loss in consequence of Butler’s drawing the bill, The other partners’ status was not in the least changed.
The tobacco was not sold till they gave their joint order for its sale, and they received each his proportionate share of the proceeds.
Butler made nothing out of the transaction, and I am unable to perceive any just rule on which the plaintiffs can base their claim.
The judgment should be affirmed.