110 Ky. 867 | Ky. Ct. App. | 1901
Lead Opinion
Reversing.
This is an appeal from a judgment of the Laurel Circuit Court, sustaining a general demurrer to t(he petition of appellant as amended, in which he sought to hold S G-. Steele liable as a partner of his co-defendant, A. K. Cook, for certain indebtedness paid by him as security for the firm. He alleged in substance, that in the year 1881,- Cook and Steele were partners in the business of contracting for and carrying the mails of tlhe United States, — a business generally known as that of United States mail bidders and contractors; that in the conduct of this business it was necessary to make and sign proposals, and to make, sign and execute with sufficient sureties, bonds- to the United States Government, and the execution of such bonds was a part -of, and within tlhe scope of, the partnership business, and that in the usual course of such business, and .in the customary way, the defendants, on the 20th day of January, 1881, executed a number of bonds' to the Government for carrying all the -mails between certain designated places, which were signed by A. K. Cook as principal, and by plaintiff and W. H. Jackson as securities; that, at the time of, and before the execution of these bonds Cook and Steele were -equal partners in the business, and by the terms of the partnership each member of the firm was to equally share any expenses, profits, and los-ses that might accrue from said partnership business ¡and were equally liable for the obligations of the firm; that at the time he -signed said bonds both Cook & Steele, as partners agreed to -and did use the name of Andrew King Cook, one of the members of said firm, to represent -the partnership or firm name in connection with the execution of said bonds, and that said bonds were signed and executed in the name of Cook for the partner
It is insisted for ¡appellee that the petition in this case is fatally defective because it fails to allege that Andrew King Cook was the partnership name under which the firm of Cook & Steele transacted business, and that under the bond as executed, the United States government had
Petition for rehearing by appellee overruled.
Rehearing
In the petition for rehearing our attention is called to the fact that the rule enunciated in Hikes v. Crawford, 67 Ky. 19, was, to some extent, disapproved in Macklin v. Crutcher, 69 Ky. 401. This was not done on the original hearing ánd escaped our attention. But in the latter case on page 403, the court said: “Had the note as signed, purported to have been for, and by a firm, an error in the .style of the firm would not have - exonerated M-acklin on. proof, that, even though not named, he was one of the firm intended, because that proof disclosed him as a member of the firm intended, and thereby made him a party. This principle was recognized by this court in the case of Kinsman v. Dallam, 5 Mon. 385. Or had Macklin been a dormant partner and Ferguson been the only overt partner, doing their business in the name of ‘W. T. Ferguson/ proof that Macklin was a secret co-partner would have made him a party to the note . This also was adjudged by this court in the manuscript opinion of Hickman v. McGee.”
“But here there was neither dormancy nor any other partnership name than the well known and accustomed name of ‘Macklin & Ferguson.’ The reason of these adjudged cases, therefore, does not apply to this case, but implies that the notes as signed were not by any firm, nor in, any way binding on Macklin as written obligations.”
The case of Hikes v. Crawford & Long, 4 Bush 19, is the only case in this court that squints the other way.
In that case, Crawford & Long being liable as partners, Long gave his individual note with Hikes as surety for the debt; and Hikes having satisfied the judgment against Long and himself on that note, was adjudged to be entitled to restitution from Crawford as well as Long. But in
It will be observed that Hikes v. Crawford, was a suit by a surety who had signed the note of one partner for a firm debt, against the other partner who had not signed the note, and that it was held he could recover. It will also be observed that the soundness of this conclusion is recognized in Macklin v. Crutcher and the opinion in the former case is criticised only because it squints at the idea that an action might be maintained on the note against the partner who had not signed it. In the case at bar the action is by the surety as in Hikes v. Crawford. A. recovery is not sought on the written contract alone, but on the original-consideration and all the facts. It is averred, too, that ¡the bond was given and intended as the obligation of the firm, which would also bring the case within the doctrine laid down in Macklin v. Crutcher. And it was upon this ground that the original opinion of the court was really rested.
If Cook had paid the liability set out in the petition, undoubtedly on the facts averred appellee would have been responsible to him. When Cook failed to pay and the surety was compelled to bear the loss, he was entitled in equity by subrogation to all the rights his principal would -have had in case he had not defaulted in the payment of the bond.
The petition for rehearing is, therefore, overruled.