36 Ill. 252 | Ill. | 1864
delivered the opinion of the Court:
As to the first objection made by the plaintiff in error, that the court refused to quash the writ, it is sufficient to say, that the motion in that behalf, alleged no reason on which it was founded, nor was the decision of the court thereon excepted to, nor is any fact, in regard thereto, preserved in the record. The writ on its face, is, in all respects, formal and regular.
If, however, there was any valid objection to the writ, it was waived by pleading to the merits.
It is doubtless true, as a general principle, that one partner cannot sue another partner, at law, for any matter growing out of the partnership concern, or involving a consideration of partnership transactions, but for other and independent matters, there is no restriction upon partners. Ohitty on Contracts, 236 to 239, note 1.
This case involves no such considerations. The defendant in error was a partner with one Boren in a hotel, and owned, over and above her half of the furniture thereof, ninety-five dollars worth. The plaintiff bought Boren’s interest in the hotel, and agreed to pay the defendant this ninety-five dollars, and thereupon became a partner with the defendant. Soon after, the plaintiff purchased out the interest of the defendant in the property, agreeing to pay her one-half of the invoice price of it. The invoice was made out at six hundred and seventy and ninety one-hundredths dollars, one-half of which would be three hundred and thirty-five and forty-five one-hundredths dollars. This the plaintiff excused himself from paying, alleging that he had to get a bill of five hundred dollars changed. It also appears that defendant loaned the plaintiff the sum of seventy dollars, and paid a note of thirty dollars for him, which he agreed to repay.
These several items are properly recoverable under the counts for goods sold, and for money lent, respectively. No consideration of partnership matters is involved in them in any sense or degree, but they are independent transactions. The sale by defendant to the plaintiff dissolved the partnership, and he became liable on his several promises. The plaintiff agreed to pay for the property according to the invoice, and was put in exclusive possession thereof. The contract was not, as the plaintiff seems to understand, that he would account for this property on settlement of the partnership, but that he would pay on the invoice for the property which he received. He has not so paid, and judgment was properly rendered against him for the amount found by the court
If there are unsettled partnership debts, the defendant is by no means exempt from liability for her proportion of them, and can be compelled to discharge that liability. Taking the contract of these parties as proved, there cannot remain a doubt of the plaintiff’s liability to perform his contract, as he has made it.
The judgment is affirmed. Judgment affirmed,.
