Noble v. Miley

Ellison, J. The defendant firm, P. Miley & Company, was indebted to the respondents, Noble & Little, and judgment against the former had been rendered in favor of the latter. The appellant, W. S. Brown, was garnished as a debtor to the defendant firm of P. Miley & Company. Issues were joined between the plaintiffs and the appellant, Brown, which were determined by the trial court'in favor of plaintiffs. The appellant, Brown, contends that he has paid his indebtedness to P. Miley & Company, by reason of a claim he held against Miley, individually, which claim upon settlement between him and Miley was allowed by Miley against the firm claim of P. Miley & Company, against appellant. He further contends that this settlement was made with the knowledge and approval of the defendant, Metcalf, the other member of the firm of P. Miley & Company, or that if he did not know of it, he afterwards, with knowledge, ratified it. The court found against the garnishee on issues joined between him and plaintiffs, in the manner designated by statute. There is evidence sufficient to sustain the court’s finding, and we will not disturb the result reached unless the instructions given clearly indicate that the court has tried the case upon a wrong theory of the law. [363] The primary question is, was Brown indebted to the firm of P. Miley & Company at the time of the garnishment ; if he was, of course he must respond to the plaintiffs here, who were judgment creditors of P. Miley & Company. It is familiar law in this state that one member of a firm cannot appropriate its property or assets, without the consent of his co-partners, to the. payment of his individual debts. Phelps v. McNeely, 66 Mo. 554; Price v. Hunt, 59 Mo. 258. So nothing further appearing than that Miley had undertaken to settle his individual debt to Brown with the debt due the firm from Brown, there would be no-question that the disposition of the firm’s credits would be illegal, and that Brown’s debt would remain undischarged. If, however, the other member of the partnership,, on becoming aware of what his co-partner had done, had adopted and ratified the act, the firm would have been bound. So, too, the other member might, by conduct, estop himself from claiming there had been no adjustment-of Brown’s debt to the firm. Aside from the question whether these matters should or should not have been pleaded, if relied upon, we find they were considered by the court, as shown by the instructions, and from the result we conclude the court has found there was no ratification or estoppel. Several instructions were refused for appellant, but those given sufficiently covered all the points in controversy. The other judges concurring, the judgment is affirmed.