Kehoe v. Carville

84 Iowa 415 | Iowa | 1892

Rothrock, J.

I. It appears from the record that the petition was filed on the twenty-seventh day of' 1. Pleading: answer: time of filing. November, 1888. No appearance was made for the defendant Carville, and he was adjudged to be in default. The defendant King answered the petition on the seventh day of January, 1889. On the twentieth day of May,, in the same year, plaintiff filed an amendment to his petition; and on the tenth day of November, 1889, he filed another amendment to his petition. The evidence was taken and submitted to the court, and the cause was taken under advisement by the court, with an agreement that the decision should be filed in vacation. The cause was not decided until during the next term ©f the court. The defendant King had filed no answer to the amendments to the petition. The record made upon the decision of the cause contains the following clause: “Now comes on this eighth day of May, 1890, Judge Couch, before whom said cause was heretofore tried, and now comes defendant King and asks and is granted leave to file answer to amendments to petition (said answer being submitted to court with argument), to which plaintiff excepts.”

The answer to the amendments was a general denial. It is claimed that the answer was filed too late. The cause was tried upon the theory that the petition and both amendments thereto were in issue. The plaintiff had not demanded a default against King for failure to answer the amendments. The answer was filed before the cause was finally submitted to the court for decision. It was submitted to the court with the argument of the defendant. We think, under these facts, there was no abuse of discretion in allowing the answer to be filed. Indeed, it is somewhat questionable whether any additional answer was required, in view of the single question which appears to us to be’ involved in this appeal.

II. It appears from th~e evidence that in the spring of the year 1887 the defendants entered into a 2. PAE~rNEBSHIP: dissolution: uotice. partnership to conduct and operate two creameries. The partnership contract was not in writing. The name of the firm was Oarville & King. The business was conducted in that name during the summer and fall, of that year, and until about the first day of December. The partnership expended money in building one of the creameries, and at the end of the operations for that season the partner~ ship was dissolved, and upon a settlement it was found that Oarville was indebted to King in the sum of one thciusand dollars, and to secure the payment thereof Carville executed to King the chattel mortgage upon the property, the validity of which mortgage is in controversy in this action. There is no question but that there was in fact a dissolution of the partnership. Carville opened business at the creameries in the spring of 1888, and continued until about November of the same year when he suddenly disappeared; and, so far as appears, his whereabouts are unknown. The plaintiff and others residing in the neighborhood sold milk to the creameries; and, when Carville left the country, there was indebtedness aggregating nearly one thousand dollars due to the patrons of the creameries. These creditors assigned their claims to the plaintiff, and he represents all the assignors as well as himself. We have said that the partnership wa.s in fact dissolved, but it is claimed in behalf of the plaintiff that he and those whom he represents had no notice of the dissolution. This is the only material question in the case. It is true it is claimed that the settlement and the mortgage taken by King were fraudulent, but this is not a material question in the case, because if as to third persons there was a dissolution of the firm, it is wholly immaterial, unless such persons were creditors of the firm before it was dissolved. The claims presented by the plaintiff are for milk furnished to the creameries in the month of October, and up to the closing of the business by the flight of Carville in November, 1888. It appears from the evidence, that, during the whole time that the creameries were operated, those who furnished milk were paid by checks on banks at Monticello or Hopkinton. During the season of 1887 these checks from the two creameries carried on by the defendants were signed by Carville & King. It is not absolutely certain that all of the checks were so signed, but that was the general method of doing business, and the bank accounts upon which the checks were drawn were kept in the name of Carville & King. The checks which were given to the plaintiff and his assignors in the year 1888 were not signed by Carville & King. The record shows that the defendant introduced all of these checks in evidence, with the possible exception of one or two, and that they were drawn and signed by M. Carville upon his account with a bank at Monticello; and it further appears that during the year 1888 King was not personally engaged in the business, but was employed elsewhere. We think the court was right in .determining that the plaintiff and his assignors had notice of the dissolution. It is true that they testify as witnesses that they supposed the partnership continued, and there are some facts and circumstances which tend to support their testimony. We need not set out these facts and circumstances. They ought not to be allowed to overcome the fact that the checks which the patrons of the creameries received during the whole of the year 1888 showed upon their face that they were not issued by Carville & King, but by Carville'alone.

The decree of the district court is affiumed.