Willis Coal & Mining Co. v. Furstenfeld

GRAY, J. This is an action against defendants, sued as a co-partnership, for coal sold and delivered at the special instance and request of defendants. The petition, after alleging that the plaintiff is a business corporation organized under the laws of Missouri, alleges that the defendants named were co-partners and dealt in coal and fuel and other merchandise under the firm name and style of O. Furstenfeld & Sons; that during the years of 1901 to 1906, the plaintiff sold to the defendants coal, and that the defendants are indebted to plaintiff in the sum of $617.23 therefor. It stands admitted between the years 1901 and 1906, the defendants were partners, as alleged in the plaintiff’s petition, and that in January, 1906, two of the defendants sold their interest in the partnership [281] business to the appellant herein, who was the other member of the firm at that time. The two defendants, who had sold their interests to the appellant, permitted judgment to go against them by default, but the appellant filed an answer, alleging that on the 2nd day of January, 1906, he and his wife purchased from the' other defendants all the business and property of the co-partnership, and that the two defendants so selling released the appellant from any liability on account of' said business, and that said release dissolved the co-partnership, and therefore the defendant is not liable. The wife of the appellant asked to be made a party defendant, and her request was refused, -and the action of the trial court in refusing to permit her to be made-a party is assigned as error. This is not a suit to establish an equitable lien on the- partnership property, and therefore, no error was committed in refusing the request of the appellant’s wife. The court struck out all of defendant’s answer except the general denial. When it is considered that this is a suit for a money-judgment against the partners of the old firm, and on-the original account for the balance due for coal sold and delivered to said original co-partnership, we cannot see what the special matters alleged in the answer had to do with the controversy. The appellant insists-, that when the old firm was dissolved and he retired, that he was released from all obligations of the firm. The other defendants could have made this plea also, as well as the appellant. They sold to him and his wife- and retired from the business, and therefore, they might have alleged that fact and been relieved, and if appellant’s defense is good, then the plaintiff would be entirely unable to collect defendants’ admitted indebtedness from anyone. The plaintiff was not a party to the contract by which appellant and his wife purchased the interests of the other defendants, and at no time released any one of the partners from payment of the claim. [282] The appellant cites the cases of Spaunhorst v. Link, 46 Mo. 199, and Friedman v. Punch, 93 Mo. App. 468, in support of its contention. We can find nothing in those cases dealing with the issue involved. This suit is not an effort to make the debts of the old partnership a charge on the new one. It is simply a suit to make the old members of the firm pay the debt of the old firm. It stands admitted that the appellant was a member of the old firm as well as the new, and all the coal furnished was sold to him and his co-partners and as respondent has in no wise released him, there can be no reason assigned why he should not pay. The defense' is without substantial merit, and the judgment of the trial court will be affirmed. All concur.