Skinner v. Hitt

Ellison, P. J. — This suit is for a balance on an account alleged to be due plaintiffs from the firm of Hitt & Elkins. Hitt & Elkins were partners as merchant tailors in Kansas City, and plaintiffs are wholesale merchants of Chicago. Elkins retired from the firm in May, 1885, Hitt assuming all of the firm’s liabilities and continuing in the business under the name of S. M. Hitt & Co. Among the liabilities at the dissolution was the claim in suit. The case was tried without the aid of a jury, and the only question presented was as to the application of payments made by Hitt. Plaintiffs claim that they were and should have been applied on the account which S. M. Hitt & Co. made with them after the dissolution of the firm ; while defendants contend that they should be applied on the old account due from Hitt & Elkins. Evidence was heard on this question [406] which tended to support the contention of each; the lower court passed upon that evidence, and we will not disturb the conclusion reached. ' Hitt and Elkins were both sued ; Elkins afterwards dying, his executrix Ada H. Elkins was substituted as defendant and she adopted the answer of the deceased. Judgment by default was taken against Hitt, and plaintiffs raise the point that, as Hitt is making no complaint, Elkins has no standing in court to contest the application of payments made by Hitt. There is nothing in this. The agreement between Hitt and Elkins was that Hitt would assume and pay all firm obligations. This agreement only bound them and left Elkins still liable to plaintiffs. Elkins has, undoubtedly, the right to inquire into the application of a payment which has been made for the purpose of discharging his own debt. The judgment, with the concurrence of the other judges, is affirmed.