164 Ill. 83 | Ill. | 1896
delivered the opinion of the court:
The question in this case is whether or not the notes filed by the defendant in error as a claim against the insolvent estate of the firm of Morse, Mitchell & Williams are a partnership indebtedness.
The defendant in error insists that the plaintiffs in error, who are objecting to the allowance of said claim against the partnership assets, are not in a position to object to its allowance. This point is not well made.^ That they are in a position to make the objection is clear, for one of them is the assignee of Morse, Mitchell & Williams, while the others are creditors who have proved their claims against the insolvent estate, and their interest therein is such as to entitle them to protect it against improper claims.
The defendant in error insists, also, that the plaintiffs in error cannot here make the objection that its claim is not a partnership debt, for the reason, as is said, that the objection was not made in the county court. A sufficient answer to this is, that the eleventh objection filed by plaintiffs in error, viz., “the claim is inequitable, unjust and improper,” is broad enough to cover that objection.
It is contended in .behalf of the plaintiffs in error that the notes on which the defendant in error bases its claim represent the individual indebtedness of the several persons whose names are signed thereto, and are not a proper charge against the partnership assets. Besides the signatures of Burchard and Cragin the notes bear the individual signatures of Morse, Mitchell and Williams, but not the firm name. The fact that they are so signed is not, however, necessarily conclusive that the obligation, in so far as Morse, Mitchell and Williams are concerned, is not a firm obligation. Treating the notes as a firm obligation would not be inconsistent with their face. To determine the fact whether or not they are such, it is necessary to inquire into the nature of the transaction out of which they grew, and how it was intended they should operate.
At the hearing, Franci's E. Morse, one of the members of the firm, and Carrie A. Howard, the book-keeper, were called as witnesses in behalf of the defendant in error, and they were the only witnesses examined. Morse testified that the purchase of the Austin property was entered into by the firm, as a partnership venture, and not on the individual account of the three members of the firm, and that the notes in controversy were given in partial payment of the purchase price. Also, that prior to the purchase of said property the firm of Morse, Mitchell & Williams had speculated several times in real estate. Both witnesses testified, and the firm’s books show, that all of the money which was paid for the property and all that was expended in improvements was paid by the firm from its partnership funds, Burchard and Cragin refunding their proportions. The land and its proceeds were carried on the firm’s books as partnership assets and the purchase money notes as partnership debts. This evidence was sufficient to make out a prima facie case for the defendant in error, for it shows that the purchase was made by the firm for partnership profit and that the notes were given for a partnership indebtedness; and the evidence does not vary or contradict the terms of the notes, for they do not appear on their face not to be an obligation of the firm.
The fact that Mitchell’s name did not appear in the preliminary agreement for the purchase of the property is of no importance, because it does appear in all the subsequent papers relating thereto. The important fact is not who first contemplated making the purchase, but whether the firm of Morse, Mitchell & Williams was one of the purchasers. It is also immaterial that the notes were signed with the individual names of the persons composing the firm instead of being signed with the firm name, since they were given for a partnership indebtedness. Farwell v. Huston, 151 Ill. 239.
The notes in question were a proper charge against the assets in the hands of the assignee of Morse, Mitchell & Williams, and the claim of defendant in error should have been allowed. The j udgment of the Appellate Court is accordingly affirmed.
Judgment affirmed.
