Buck v. Mosley & Mallory

One partner cannot apply the partnership funds or securities to the discharge of his own private debts without the consent^of themembers of the firm. If a member of a copartnership firm should thus apply the firm effects, no title is divested in favor of such separate creditor, whether he knew it to be partnership property or not. Minor v. Gaw et at., 11 S. & M. 326, cited and confirmed. The record must show affirmatively that an issue was submitted to the jury which they were sworn to try, otherwise the judgment will be erroneous.

In' error from the circuit court of Noxubee county; Hon. John Watts, judge. Mosley & Mallory, copartaers in making and laying brick, sued Buck in assumpsit, on an account, for $89.30, — items, brick furnished and laid in building; non assumpsit and payment were pleaded, and issues joined. Mosley & Mallory introduced a witness, who deposed that he was present when Mallory, one of the partners, and said Buck tried to settle; that Buck admitted the correctness of the account sued on. Witness says Mallory admitted that, at the time Buck contracted with him for the work and materials, that he, Mallory, agreed to let the value of said work and materials go as a credit or credits on his individual two notes to Buck; and said Mallory admitted that, at the time he contracted with Buck, he did not mention the copartnership to said Buck, and that he did not know whether the said Buck then knew of the copartnership. Witness further testified, that, after, Mallory and Buck agreed upon the correctness of the account, he, witness, (in presence of both of them,) by direction of Buck, credited the amount of said account on Mallory’s two notes, in Mallory’s presence; that one of the notes would have been discharged by the credit; the two notes were on one piece of paper, and as Buck was about to sever them, for the purpose of delivering up the one that was to be discharged by the credit, Mallory, for the first time, objected to that mode of settlement, until he could consult with his partner, Mosley. Another witness was introduced on behalf of the plaintiffs below, who testified that he presented the account to defendant, Buck, before it was sued on; that said Buck admitted the items and prices charged in said account to be correct, but said that he knew nothing about the copartnership when he contracted with Mallory to credit the amount of the work and labor on his two notes. Defendant, Buck, then offered to introduce as evidence Mallory’s two notes to him, with credits entered on them to the ' amount of the account sued on, in proof of payment; which was objected to by the plaintiffs, unless the consent of Mosley, the other copartner, was proven to have been given; which objection was sustained. Defendant then offered to prove by a witness, that the copartnership between the plaintiffs was a secret one; and that plaintiff, Mallory, alone was engaged in making brick, and doing work as a brick-mason; that plaintiff, Mosley, took no part in the management of the affairs of the concern, was not a brick-mason, but following other pursuits; that Mallory was, at the time of making the contract with Buck, in doubtful circumstances, and is still in that condition; which was all objected to by the plaintiffs, and the objection sustained by the court. The defendant then offered to prove that Mallory had repeatedly stated to witness, while engaged in doing the work, that the contract between him and Buck was, that the value of the work and materials was to go as a credit upon the notes of Mallory to Buck, which notes Mallory said were given for the land off which he got the wood to burn the brick used; and the court ruled it out.