
    State ex rel. John G. Allen et al., Appellants, v. M. Pare et al., Respondents.
    Kansas City Court of Appeals,
    January 9, 1888.
    Practice — Petition and Proof — Instructions—Case Adjudged. Where the petition alleges (as in this case), as a breach of the bond given for the administration of the partnership estate, the failure to pay a judgment rendered in the circuit court against the partnership estate, and allowed in the probate court against said-estate, while the proof offered in support of these allegations is a judgment against the individual estate. Held, that the court properly excluded the evidence, as it failed to sustain the petition.
    Appeal from Dallas Circuit Court, Hon. W. I. Wallace, Judge.
    
      Affirmed.
    
    The case is stated in the opinion.
    John S. Hatnes, for the appellants.
    I. The court erred in excluding the papers in the attachment suit. They should have been admitted to show whether the-relator’s demand was due from the partnership or the individual estate of Edington. They •explained the judgment in this respect. Freeman on ’Judgments, p. 31, sec. 45; p. 36, sec. 50a; p. 231, sec. 215.
    . II. The judgment in the circuit court, and that of the county court classifying relator’s demand,-should have been admitted in evidence. They were properly rendered against Pare, as administrator of the estate of Edington, although, on a liability of the partnership estate. Pare was not administrator of the partnership estate, as a distinct administration. He was only administrator of the individual estate, and as such took charge of the partnership effects by reason of the surviving partner failing to give bond. The law did not require, and there was not a separate appointment of Pare. He was only required to give a' separate bond. Gen. Stat. 1865, ,ch. 120, p. 485, sec. 55, and p. 486, secs. 59 and 60. Hence the judgments could not have been against Pare as administrator of the partnership estate, when he was not such administrator.
    III. The court should have sustained relator’s motion to set aside non-suit.
    J. P. Nixon, for the respondents.
    I. The proof did not correspond with the allegations of the petition. The petition alleged that judgment was obtained against the partnership estate, and that demand was allowed against said- estate. The' proof was that judgment and allowance .were against the individual estate. Plaintiff sought to contradict his own pleadings, which is not allowable. State r. Roberts, 62 Mo. 338; Seibert v. Allen, 61 Mo. 482; Wilson v. Albert, 89 Mo. 357; Weil 'o. Posten, 77 Mo. 284; Bank v. Armstrong, 62 Mo. 54.
    II. The relators are strangers to the partnership estate. They are not creditors of that estate and never had any demand allowed against it. The two estates, the individual estate and the partnership estate, are strictly distinct in their elements and incidents, and no less separate because M. Pare happens to be administrator of each of said estates.
    III. The appellant has been driven in his brief to the novel position that the two estates are blended together and thrown into hotchpotch. This is in the teeth of the statute, and of well-recognized principles applicable to the law of partnership.
    IV. The death of a partner, while it dissolves the partnership, does not transmute a partnership- estate into an individual estate ; nor affect preferred rights of firm creditors to partnership property. The statute recognizes and enforces this distinction, among other things, in order of classification of demands. Rev. Stat., secs. 66 and 184.
    Y. In this case the relators voluntarily relinquished and surrendered their claim to satisfaction out of the partnership estate, purposely obtained judgment against the individual estate of W. H. Edington, deceased, and had their demand allowed against W. H. Edington alone. Indeed, the open secret is, that at the time of obtaining their judgment in the Dallas circuit court, and afterwards, the purpose of relators was to perfect and enforce their attachment lien against the lands of W. H. Edington, deceased,'and thus purposely abandoned all rights to the partnership fund and estate. Now having made themselves strangers to the partnership estate,, and having failed to establish any legal claim to the same, they have no right in law to call the defendants to account for the administration of an estate of which they are not creditors, and to which they have no claim.
    YI. The decision of the circuit court was correct, the evidence was properly excluded, and the judgment should be affirmed.
   Ellison, J.

This action is on the bond of defendant, M. Pare, and the other defendants as his sureties, executed for the faithful administration of the partnership estate of W. EL Edington & Company, the breach being a failure to pay a demand alleged to have been allowed against the partnership estate. Plaintiff suffered a non-suit on account of adverse rulings on his evidence, and failing to have it set aside he appeals.

The petition alleges that W. EL Edington departed this life intestate, and defendant, Pare, was appointed administrator of his estate; that, at the time of his death, he was and had been a member of the partnership firm of W. H. Edington & Company, a firm composed of W. H. Edington and Thomas Hutchinson; that Hutchinson, as surviving partner, failed to give bond within thirty days, as required by law, and that thereby the administration of the partnership estate devolved upon defendant. Pare, who gave the bond required by statute for the administration of partnership estates (the bond in suit); that, after executing the bond, said Pare took charge and possession of the park nership estate. The petition then alleges that relator had a note against the partnership of Edington & Company, on which he instituted suit by attachment and attached the land of Edington; that Edington died, and that the suit was revived against defendant, Pare, as administrator of the partnership estate; that he recovered judgment against defendant as such administrator; that, afterwards, this judgment was exhibited in the probate court, which allowed and classified it in the fourth class of demands. In support of this petition relator offered in evidence the record of the circuit court covering the attachment suit, and that of the probate court covering [the allowance and classification. It appears from this record that the note was executed by the partnership of W. H. Edington & Company, and the suit was brought against them; that the suit was revived against defendant, Pare, “as administrator of said W. H. Edington’s estate.” The suit was dismissed as to Hutchinson. The court found that “ the said Edington, in his lifetime, was indebted to plaintiffs in the. sum of three hundred and forty-one dollars, debt and damages.” The judgment is then rendered against “M. Pare, as administrator of said W. H. Edington,” and declared to be a lien on Edington’s land attached, and it is ordered to be certified to the county court for classification qnd allowance “against the estate of the said W. H. Edington.”

From this statement it appears that the petition alleges, as a breach of the bond given for the administration of the partnership estate, the failure to pay a judgment rendered in the circuit court against the partnership estate, and allowed in the probate court against said estate, while the judgment offered in support of these allegations is a judgment against the individual estate. The court properly excluded the evidence, as it failed to sustain the petition.

The suit on the note was originally against the firm of W. H. Edington & Company, but was afterward dismissed as to Hutchinson and left standing against Edington individually. The revival was undoubtedly meant as a revival against the administrator of his individual estate, and the judgment was unquestionably rendered against the individual estate. The finding of the court shows such to be the case.

The judgment should be affirmed, and it is so ordered.

All. concur.  