Goodman v. White

25 Miss. 163 | Miss. | 1852

Mr. Justice Fisher

delivered the opinion of the court.

The defendant in error brought an action of assumpsit, in the circuit court of Marshall county, to recover of the plaintiff in error, as a member of the firm of Goodman & Means, who were copartners in a warehouse, commission, receiving, and forwarding business in the city of Memphis, the sum of $250, the value of $360 of the issues of the Farmers and Merchants Bank of Memphis, left with Means, and by him received in the name of the firm, to be sold or converted, at their market value, into par funds.

The defence set up to the action was, that the undertaking of Means, in the name of the firm, was not within the scope and purpose of the copartnership, which was formed for the purpose of conducting the business above named, and not of dealing in uncurrent bank paper; and that the defendant in the action could only be held liable, by assenting to this deviation from the general object of the, copartnership by Means.

This view of the law was fully sustained by the court below, as appears from the instructions given to the jury. The question is, therefore, entirely one of fact, whether the verdict of the jury against the plaintiff in error, for the amount claimed, is sustained by the evidence, and on this subject it will be sufficient for us to state in general terms, that the record shows no evidence whatever, tending to prove either the assent of the plaintiff in error, or a knowledge, on his part, of the transaction. The book-keeper says, that no entry was made on the books of the firm, touching the receipt or disposition of the money left for sale. If, as contended, it had been a matter transacted by the firm for compensation, the books ought certainly to have shown it, as the compensation would have been part of the profits of the concern. But it is unnecessary to consume time on what does not require explanation or argument. There is no testimony on the point.

Judgment reversed, and new trial granted.