In his first annual settlement he claimed and obtained credit for “$1,390.41 amount paid for running the store, and $575 for eleven and a half months services in the store, $50 per month.” Later on when he presented his final settlement to the probate court the plaintiff, who is the widow of the deceased partner and administratrix of his estate, appeared and filed objections thereto which were overruled and the settlement approved. The plaintiff appealed to the circuit court where, by consent of parties, the case was sent to a referee. The evidence taken by the referee, together with his findings of fact and conclusions of law, was duly reported by him to the court. In respect to the two items in the defendant’s annual settlement herein-before referred to, and to which the plaintiff made objection, the x'eferee found that the defendant had paid out the amount of the one and performed the service for which the charge was made in the other, but found further, as a matter of law, that the defendant was not entitled to credit for either of such items.
The court affirmed the finding of and report of the referee in all things except as to the item of $3,381.41 paid out by the surviving partner in running the store, which was disallowed by him, and the item of $400 for services of the surviving partner in running the store which was disallowed by the referee, and disapproved and set aside such report as to those two items and allowed and gave the surviving partner credit for the amount thereof. After the usual unsuccessful motions the plaintiff appealed.
A surviving partner has no authority to bind the partnership assets by subjecting them to the risks incident to a continuance of the partnership business. Michael v. Locke, 80 Mo. 548; Bank v. Tracy, ante; Gamble v. Gibson, Adm’r, 59 Mo. 585. We must therefore conclude that the said item of expense could
It is our conclusion that the defendant is not entitled to either of the credits allowed him by the circuit court, and, accordingly, we shall reverse the judgment and remand the cause with directions to approve the report of the referee in its entirety both as to his findings of fact and conclusions of law, and to give the proper judgment in accordance therewith.