10 Kan. 455 | Kan. | 1872
The opinion of the court was delivered by
This case has been here once before. On the first trial in the district court the plaintiff (present plaintiff in error) obtained a judgment. That judgment was reversed by this court on the ground of error in the admission of testimony. (7 Kas., 339.) Upon the second trial the defendant obtained judgment, and to reverse such judgment the present proceeding is instituted. Two questions arise on the record. The first question we shall consider grows out of the giving, at the instance of the defendant, the folloAving instruction:
“ If the jury find from the evidence that the plaintiff, with the knoAvledge of the partnership, contracted for the corn in dispute of one of the partners, Butts, and the proceeds of such sale, by the terms of the contract between such partner and buyer, were to be- applied to the separate private account of such partner, without the knoAvledge and consent of the other partners, such sale is, as against the other partners, fraudulent, and no title passed, and the jury must find for the defendant.”
the partnership credit, or use the partnership assets, for the satisfaction of his- individual indebtedness without the consent •of his partners. That is a use foreign to the purposes of a partnership. Neither can he in any way dispose of the property so as to deprive the partnership of the benefit of it. In Rogers v. Batchelor, 12 Peters, 229, the supreme court of the U. S. said: “The implied authority of each partner to dispose of the partnership funds strictly and rightfully extends only to the business and transactions of the partnership itself; and any disposition of these funds by any partner beyond such purposes is an excess of this authority as partner, and a misappropriation of those funds, for which the partner is responsible to the partnership, though in the case of bona fide purchasers without notice, .for a valuable consideration the partnership may be bound by such acts. * * * In the case of a partner paying his own separate debt out of the partnership funds, it is manifest that it is a violation of his duty, and of the rights of his partners, unless they have assented to it. The act is an illegal conversion of the funds, and the separate creditor can have no better title to the funds than his debtor himself had.” See also upon the general subject of the limitation upon the power of a partner to use partnership funds or credit for individual benefit without the consent of his partners, Story •on Partnership, §§ 131, 133; 3 Kent’s Com., 43; Cadwallader v. Rooesen, 22 Md., 200; Dob v. Halsey, 16 Johns., 34; Gansevort v. Williams, 14 Wend., 133. The question has generally arisen in cases where a partner has given a firm note for his individual debt. But the principle on which these, cases rest sustains this instruction. That which vitiates is, the attempt to wrong the partnership. To it belongs a certain amount of credit and property. To transfer either, without its consent, .is a trespass on its rights. And it makes no difference whether