Kuhn v. Weil

Hbnet, J. This is an action originally against Joseph and Max Weil, and other defendants, for unlawfully seizing and converting to their own use a stock of goods, the property of plaintiff, alleged to be of the value of $11,000. The suit was dismissed as to all the other defendants, and Joseph and Max Weil filed their answer, denying generally the allegations of the petition, and alleging specifically the seizure of the goods as the property of one Massman, by the sheriff of St. Louis county, under an attachment in their favor against said Massman, and that before the attachment was issued, Massman, in order to defraud his creditors, executed a bill of sale of the goods in controversy to the plaintiff, and that defendants were creditors of said Massman. There was a replication denying the alleged fraud, and on the issues thus made, there was a trial which resulted in a verdict and judgment for plaintiff, which, on appeal to the court'of appeals, was affirmed, and defendants have prosecuted an appeal to this court. 1. practice: adpSeadiugs: evidence- One of the principal questions discussed in the brief of appellants’ counsel cannot be considered on its merits. It is settled by the pleadings. The seizure of goods is admitted by the answer, and all the evidence tending to show that the property had been previously seized under other attachments issued at the suit of other creditors, was inadmissible under the pleadings, and if defendants desired to avail themselves of such defense, they should have amended their answer. [216] They admit and justify the seizure under their attachment, and cannot now be heard to say that their answer is untrue. We might dispose of this cause by simply adopting the opinion delivered by the court of appeals, but will notice briefly one of the points made in the brief, because so strenuously urged upon our attention. 2. paetnebship: partner’s liability for torts of co-partners m the business, By the second instruction the jury were told that plaintiff was entitled to recover in this action against the defendants, or either of them, who author- # . mi i izea or sanctioned such seizure. q Ihe defendants were Joseph and Max Weil, partners in business, and the attachment suit, under which the goods were seized, was instituted by the firm, or by Joseph Weil in the name of the firm, on an indebtedness to the firm; and the institution of such a suit by one of the co-partners is within the scope of his authority. 'Eor such torts as are committed by one partner, in the course of the business of the partnership, all are liable, although the others may not have expressly assented to the act. Story on Part., § 166. Each partner is a general agent for the other as to all matters within the scope of the partnership dealings, and has all necessary authority to cany on the partnership and do such things as are usually done by partners, in the business they are engaged in. Story on Part., § 101. Under this general authority, the right of one partner in a mercantile firm, without consulting his co-partners, to sue in the name of all the co-partners for a debt due the firm, either in an ordinary action, or one in attachment, cannot be questioned, and it is a logical conclusion from the elementary doctrines announced by Story, and well sustained by the authorities, that all .the co-partners are liable to any one whose goods have been wrongfully seized under such attachment by the direction of the partner instituting the suit. If the defendants were strangers to each other, and were sued for a joint trespass, and such an instruction as the one complained of were given, it might be open to the [217] criticism made by defendants’ counsel; but under the circumstances of this case, the words “authorized” or “ sanctioned ” required no explanation, because the only evidence of authority for, or sanction of, the seizure given by Max Weil was the institution of the suit by Joseph, and the direction given by him to the sheriff to levy the attachment, on the property in question-. If the jury could have been misled by the instruction, to take anything else as an authorization or sanction of the seizure by Max Weil, it could not have prejudiced the defendant Max, because the existence of the partnership, the institution of the suit for a partnership debt, and the direction by Joseph Weil to the sheriff to make the seizure, are clearly established by the evidence, and fully warranted the jury in finding that both the defendants authorized and sanctioned the levy. Eor these reasons, and those given by the court of appeals in its opinion delivered herein, the judgment is affirmed. All concur.