41 Mo. 274 | Mo. | 1867
delivered the opinion of the court.
The case comes up by appeal from the District Court of the 5th District, in which the judgment obtained by the plaintiff in the Ray Circuit Court was reversed.
The petition must be regarded as stating a cause of action against the members of the firm of Wm. Hudgins & Co. for
To the cause of action founded on money loaned to the firm, the defendants Garner, Stewart and Shaw were unnecessary and improper parties. A demurrer to the petition, for this reason, was filed by the defendants Hudgins and Bayliss; but it does not appear by the record what disposition was made of it, otherwise than as it appears that these defendants afterwards had leave to answer. The demurrer should have been sustained—Gen. Stat. 1865, ch. 165, § 6. The trial proceeded against all these parties, and a verdict and judgment were rendered against them all. This error was made the ground for a motion in arrest of judgment, which was overruled. We think it should have been sustained. There can be no doubt that such a judgment is erroneous.
It was insisted by the respondents that the record shows that the motion for a new trial was filed after the motion in arrest, and was impliedly withdrawn or wholly superseded, and that therefore the case must be considered here as if no motion for a new trial had been made. We do not agree to this view of the matter. The bill of exceptions shows that the motion for a new trial was filed first, and first disposed
The principal difference between this case as presented here on the merits, and the same case as it was presented in the Farmers’ Bank v. Bayless et als., 35 Mo. 428, is in the form of the petition. In that case the note was declared on as the note of the firm. This suit is founded on the loan of money, which was the original consideration of the note; and the plaintiff seeks to establish by proof, that the money for which the note was given was a direct loan from the bank to this firm, and to hold the members of the firm liable upon the original consideration of the note. It was also argued, upon the theory on which the case seems to have been tried below, that they might also be held liable as parties to the instrument on the proof made that the note was executed by James F. Hudgins, the maker and one of the firm, by authority and in the name of the firm as their act, using the style of “ James F. Hudgins” instead of their usual partnership name. Thus the plaintiff endeavors to avail himself of two distinct grounds of liability and two causes of action in one count. With reference to the evidence and the questions of law arising in the case, it would seem to be a matter of little importance which ground of liability was relied upon, for the evidence fails to sustain either view.
The state of the case is not materially changed, by the introduction of any new or further evidence, in this case, from
The evidence fails to show that such was the nature of this, transaction ; on the contrary, it is made very clearly to appeapthat it was drawn and negotiated as the individual note off the partner signing it in his own name, and that the money; was loaned on the credit of the parties to the note,. &nds not on the credit of the firm; such appears to have bean, thp.understanding of all parties concerned. It is qt®qed.ed to.,be (, immaterial that the money, when obtained,op,the-note, was / applied to tire use of the partnership; that(W\Ou]^imorely create an individual account between the partner-and his firm,. It is equally unimportant that the parties to the note and the<, members of the firm understood that, the money was to,he borrowed for the use of the firm, or- was applied to the bush ness of the firm, when they were al¡l, at the same time, fully, aware that the note was to be drawn and negotiated as the individual note of the maker and, in his own' name only; and they knew that the reason for. this was, that it was supposed that the maker, being a director and a stockholder in the bank, could obtain the loan on better terms than the firm itself could do in their own name. There was really no transaction whatever between the bank and the firm. The
These conclusions will so far determine the case that it will he unnecessary to examine the instnictions in detail. It will be apparent that most of the instructions given by the court
The instructions refused for the defendants Hudgins and Bayliss were correct enough, and should have been given.
The judgment of the District Court reversing the judgment of the. Circuit Court will therefore be affirmed, and the cause is remanded to the Circuit Court.