Enix v. Hays

1.Partnership: promissory note. Defendant purchased certain cattle of plaintiff, supposing that thej were the property of plaintiff and B. as copartners. At the request of E., he subsequently took up anote signed both by E. and plaintiff as makers, although, in fact, plaintiff was but a surety. As a matter of fact, there was no copartnership existing between B. and plaintiff'. In an action for the purchase price of the cattle it was held : 1. That E. and plaintiff were not bound to join in an action for the purchase price of the cattle. 2. That the defendant should have made inquiry whether in fact plaintiff was principal on the note. 3. That, there being no partnership in fact, defendant could not set off his payment of the debt of E. against the claim of plaintiff.

Appeal from Monroe Circuit Cowt. This action was brought to recover $1,175 for certain cattle which plaintiff averred he had sold to the defendant. The defendant denied that he had purchased said cattle from the plaintiff. He alleged that the plaintiff and one Pleasant Enix were equal partners in the ownership of the cattle, and that the sale was made from plaintiff and said Pleasant Enix, to defendant, as a partnership transaction, and that he had paid the partnership the full contract price. Defendant further averred that the plaintiff and said Pleasant Enix were indebted to the First National Bank of Leon, on a promissory note executed by Pleasant Enix, John Enix (plaintiff herein) and one John B. Evans, for over $1,600; that at the special instance and request of said Pleasant Enix, on the part of himself and plaintiff (who were the principal makers of said note), defendant paid off and took up said, note from said bank for the said Pleasant Enix and the plaintiff. The payment of this note is averred to be the purchase price of said cattle. This payment is also pleaded as a set-off against the claim made in the petition. A jury was waived, ard the cause was tried by the court. There was a special finding of facts by the court, of which, so far as is deemed material to this appeal, the following is the substance: I. In the spring of 1875, the plaintiff and Pleasant Enix owned, each in his own right, certain cattle, which they were herding on the open prairie in Decatur county. The defendant had certain other cattle, and it was arranged that those belonging to all the parties should be herded together. The plaintiff and said Pleasant Enix always spoke of and talked about said cattle to defendant as their cattle, and the defendant supposed, and had good reason to believe, from his conversations with plaintiff and Pleasant Enix, that they owned the same in partnership. Afterwards the defendant, with the knowledge of Pleasant Enix, purchased certain cattle of the plaintiff, the price of which is now in controversy. As a matter of fact, the plaintiff was the sole ow-ner of the cattle purchased by defendant. II. Pleasant Enix was indebted to the First National Bank of Leon in the sum of about $1,600, which debt was evidenced by a note signed by said Pleasant Enix, John Enix (the plaintiff herein), and one Evans as makers, but the plaintiff and Evans were sureties on said note. At the instance and request of Pleasant Enix, the defendant paid off said note, took it up, and subsequently delivered it to said Pleasant Enix, believing, at the time, that his debt for the cattle was owing to plaintiff and Pleasant Enix as copartners, and which, from their conduct with reference thereto, he had the right to believe. III. By proper inquiry, the defendant would readily have ascertained that the debt to the bank was the individual debt of Pleasant Enix, and he ought to have so known from the circumstances under which it was paid. IY. There was a partnership existing between defendant and said Pleasant Enix, in feeding, buying and selling cattle and hogs, and upon a settlement of said co-partnership, including said note paid to the bank, but excluding the price of the cattle purchased from plaintiff by defendant, the said Pleasant Enix will owe the defendant an amount greater than the price of the cattle. Upon these facts, the court found that the defendant was entitled to set off, of the amount due him from Pleasant Enix, a sum equal to one-half the purchase price of the cattle. Both parties excepted to this conclusion of law, and both appeal.