St. John v. Montgomery Mining Co., 68 Mo. App. 420

St. John v. Montgomery Mining Co.

68 Mo. App. 420 | Mo. Ct. App. | 1897

Ellison, J.

Statement.

This action was brought on several accounts, some due the plaintiff directly and others assigned to him. The suit was originally u brought against Herbert B. Coulter, Harold L. Coulter, Nellie Coulter, Elizabeth Ballinger, D. P. Puller, and C. A. Dunn akin. There was no service on Puller and Dunnakin, and plaintiff dismissed the case as to the two female defendants. There was a verdict for plaintiff on all of the eleven counts of the petition and defendants Herbert B. and Harold L. Coulter appeal.

All of the defendants were charged with being partners engaged in mining in Grilpin county, Colorado, under the name of the Montgomery Mining Company. The record seems clearly to establish the liability of Harold L., but whether the judgment against Herbert B. is proper depends upon the correctness of the instructions given by the court. Herbert claims to have withdrawn from the partnership before the indebtedness evidenced by the accounts arose. The plaintiff’s' claim is that, if he did, there was no notice of such withdrawal and that Herbert permitted the partnership to run on without sign or evidence of a change in the partnership.

The court, at plaintiff’s instance, instructed the jury that in order to escape liability, Herbert B. must not only have withdrawn from the firm, but must have *423also given notice to the public in Gilpin county, Colorado, of such withdrawal before the work was done and the- supplies furnished, unless the parties doing the work, or furnishing the supplies, did not believe that Herbert B. was, at the time, a member of the firm. The instructions given for defendants were directed, first, to what it would take to constitute a partnership between the parties; and next to requiring of the jury to find for defendant, Herbert B., if he was not a partner, unless he held himself out to the world as a partner.

Partnership: notice of disso*jge°n: knowl" We discover by the motion filed herein that we overlooked the facts upon which the decision in JDowselot v. Rawlings, 58 Mo. 75, was based. The facts of that case show it to be the view of that court that even though one has been an actual member of a partnership and retires, he need not give notice of dissolution of any kind, so far as concerns one who has never had any previous dealings with the firm. Following Dowselot v. Rawlings, supra, we must rule u -1- ' it error to* declare, without the limitation hereinafter suggested, in instruction number 12 for plaintiff, that there should have been a public notice of the dissolution in Gilpin county, Colorado.

Since the case must be retried, we will add that even though plaintiff had had no previous dealings with the partnership, yet if he had previously known that defendant Herbert B. was a member of the partnership and no notice of dissolution was given, he, Herbert B., would still be liable. “It seems that public notice of dissolution is required to protect a retiring partner from the future claims of persons who have had no previous dealings with the partnership, but who have knowledge of the persons who composed the firm.” Story on Part., sec. 160, latter part note 1; *424Pratt v. Page, 32 Vt. 13; Bank v. McChesney, 20 N. Y. 240; Southwick v. McGovern, 28 Iowa, 533.

And this statement of the law is comprehended by the language used in Doioselot v. Rawlings, supra. That language is (italics ours): “As to persons who have had no previous dealings with or knowledge of the firm, or of those who composed it, no notice of dissolution is necessary,” etc. And so may the same be said of the language of Story (section 160) relied upon in the case aforesaid.

■YUieUUm. The fact that the partnership name in this case, of itself, gave no intimation of who the partners were, would make no difference, since the membership could well be known. Instruction number 12 was doubtless drawn in the hurry of the trial and is inapt and well nigh misleading in much of its wording. It can and should be made specific and clear at the next hearing. Judgment reversed and cause remanded.

All concur.