H. G. Warren & Son v. Maloney

Philips, P. J. The plaintiffs, as partners, sued defendants on an account. It appears from the evidence, and the itemized accounts, that, from July 26, 1876, a firm of partners by the style of Warren and Ireland sold goods to the defendants, on a running account, until the twenty-first day of February, 1877, when Ireland retired from the concern, his place being taken by purchase, by the sou of the partner, Warren; and that thenceforth the firm name was Warren & Son, the plaintiffs in this action. The defendants continued to buy goods from the new just as they had done from the old firm ; but the purchases made by them after the constitution of the new partnership were entered on the books in the name of Warren & Son. From March 14, 1877, to July 20, 1877, the defendants run an account with said firm of Warren & Son. The plaintiffs’ action is based on both of said accounts, aggregating the sum of $395.76, with a credit of $317.06, leaving a balance of $78.70. From the itemized accounts and credits it appears that payments were made on the account from August 23, 1876, up to March' 2, 1877. Then the firm name of Warren & Son first appears, the account of payments beginning under that head of date April 2, 1877. On the trial the defendants interposed the plea of the statute of limitations«as to all that portion of the account for goods sold by Warren & Ireland. The court refused the following instruction asked by defendants: “The jury are instructed, that, at the time Ireland [104] went out "of the firm of Warren & Ireland, that terminated that copartnership, and that the firm of Warren' & Son, successors, constituted a new firm, and the accounts of each are separate, and that if more than five years has elapsed since the date of the last item or credit of the account of Ireland & Warren, then plaintiff cannot recover anything on said account of Warren & Ireland.” The court, on behalf of plaintiffs, gave an instruction which authorized the jury to find for the plaintiffs regardless of the issue of the statute of limitations. The j ury found for the plaintiffs the whole amount of their demand, less a few dollars, on account, presumably, of certain credits claimed by defendants. The court 'should have given defendants the benefit of tile statute of limitations as to the Warren & Ireland account, in some proper form. The retirement of Ireland from the copartnership of Warren & Ireland worked a dissolution of that partnership. 2 Lind, on Part. 701; Henry v. Mahone, 23 Mo. App. 83; Allen & Co. v. Smelting Co., 73 Mo. 693. As his interest appears from the record before us to have been transferred to II. C. Warren, Jr., a stranger to the old firm, there was no such devolution of accounts of the first upon the second firm as to entitle plaintiffs to claim a continuing account, so as to prevent the running of the statute of limitations from the date of the dissolution of the firm of Warren & Ireland. The continuity of the account was broken on the dissolution of Warren & Ireland. It would be as well, perhaps, to suggest, in the event of a further trial, that it would be unjust that defendants, by availing themselves of the statute of limitations, should throw the whole amount of the credits paid by them to the account of Warren & Son; as it appears that part of the payments made by defendants were on account of the account due Warrea & Ireland, as they were made prior to making any account with Warren & Son. Judgment reversed and cause remanded. All concur.