
    Jennings & Fleming, Appellants, v. Russell Bros., Respondents.
    Kansas City Court of Appeals,
    December 7, 1891.
    Partnership: membership : pleading : issue : instruction. The-pleadings presented the issue, whether Joseph was a member of the firm of R. Bros. The court instructed the jury that there was no evidence that Joseph was ever a partner of John. Held, error, as the question, whether he was a partner of John, was under the pleadings immaterial.
    
      Appeal from the Qrundy Circuit Court. — Hon. C. H. S. ’ GrOODMAN, Judge.
    Reversed and remanded.
    
      
      Geo. .Hall, for appellants.
    (1) In all actions founded on contract and instituted against several defendants, the plaintiff shall not be nonsuited by reason of his failure to prove that all of the defendants are parties to the contract, but may have judgment against such of them as he shall prove to be parties thereto. R. S. 1889, secs. 2069, 2207, 2387; Qreios v .Lackland,61 Mo.619 ; Finney v. Allen,1 Mo.416. (2) When several are sued as partners and part only are found to be liable, judgment may be rendered against them, and for the others not found to be liable. 2 Bates on Partnership, sec. 1094, and note ; R. S. 1889, sec. 2387; Johnson v. Green, 4 Porter (Ala.) 126 ; Brugmon v. McGuire, 32 Ark. 733 ; Stoddard v. YanDyke, 12 Cal. 437 ; Francis v. Dechel, 68 Gra. 255 ; Kerby ®. Con-nor, 9 Ind. 271; Pollack ®. Gozier, 20 Ind. 262 ; Pool ®. Hintrager, 60 la. 180 ; Silver v. Foster, 9 Kan. 56 ; Williams v. Rogers, 4 Bush, 776 ; Cutís v. Haynes, 41 Me. 560; Turner v. Bissell, 14 Pick. 191 ; Roberts v. Pepple, 55 Mich. 367; Town v. Washburn, 14 Minn. 268 ; Finney v. Allen, 1 Mo. 416; Qrews v. Lackland, 67 Mo. 619 ; . Wells, Fargo & Co. v. Clarkson, 5 Mon. 336; McCann v. McDonald, 1 Neb. 305; Parker ®. Jadcson, 16 Bob. 33; Ah Lep v. Gong Chry, 13 Ore. 205; Bull v. Lambson, 5 S. C. 288 ; Willis v. Moonis, 44 Tex. 27; Brown v. Pichoud, 9 Pac. Rep. (Utah) 573; Sherman v. Kreul, 42 Wis. 33-40. (3) In order to release a retiring partner from further liability for the firm debts the creditor must have notice of the dissolution or change in the firm. Dowzelet v. Rawlings, 58 Mo. 75 ; Oastello v. Nixdorf, 9 Mo. App. 501.
    
      Luther Collier with Harber & Knight, for respondents.
    (1) The appellant could not (as he seeks) have judgment against Joseph Russell, the retiring member •of the firm of Russell Bros., and also against John Russell, his successor. 1 Bates on Partnership, sec. 109, Yol. 2, sec. 626; Scarf v. Jardine, L. R. 7 App. Cases, 345. (2) If Joseph Russell, who had retired from the firm prior to the contracting of appellants’ debt, was liable to appellants, it was by reason of his having previously been a member of the firm of Russell Bros., and having failed to give notice of his retiring; and if such was the fact under proper pleadings the -appellants might have held Joseph, but they could not hold Joseph, the retiring member, and also John, the incoming partner; they had to elect which they would hold, and having elected, as they did, to hold John the • demurrer was properly given. Authorities above cited ; .Hahlo v. Mayer, 102 Mo. 93. (3) Joseph Russell 'being neither a party to the contract sued on, or a mem'her of the partnership alleged in plaintiff’s petition, .••section 2069 of statutes of 1889 did not authorize a recov- ■ ery against him, and as to him, he being neither a • member of said firm or a party to the contract declared • .upon, the demurrer was properly given. Crews v. Lackland, 67 Mo. 619, and other cases cited by ■ appellants.
   Smith, P. J.

Plaintiffs, partners, sued defendants ; as partners on an account for goods sold and delivered i "by the former to the latter. The defendant, Joseph A. ■ Russell, filed a separate answer, wherein he denied that : at the time alleged in the petition, or prior or since, he rand the other defendants named were partners engaged in business of any kind under the name and style of íRussell Bros., and denied the indebtedness alleged by •plaintiffs. The other defendants did not answer. The Issue thus made was as to whether the defendant, Joseph A. Russell, was a member of the firm of Russell Bros, at the time of the sale of the goods. The undisputed .evidence is .that he then was. It is true there is evidence from which it appears that he sold out his interest in thefirin to his brother, John Russell, but it also conclusively shows that there was no notice given of the dissolution, until Jajraary 15, 1890, which was more than a month, after the last item in plaintiffs’ account had accrued. The-evidence further shows that the plaintiffs had no knowledge, whatever, of the fact that there had been any change in the membership of the firm of Russell Bros, even if such change had been effected at a time prior to-the date of the published notice of the dissolution.

Whether the defendant, John Russell, was a member of the firm at the time of the purchase of the plaintiffs’ goods, was immaterial, since he does not complain of being charged by the plaintiff as such. The fact remains indubitably established by the evidence that Joseph A. Russell was such partner at least as to the plaintiffs, who had- no notice of his retirement from the firm. The question under the pleadings was, whether the defendant, Joseph A. Russell, was a member of the firm of Russell Bros, at the time the plaintiffs sold and delivered to it the goods mentioned in the account sued on. As to whether John Russell was a member of the firm, was not an issue under the pleadings.

The court undoubtedly erred in instructing the jury to the effect that there was no testimony to show that' defendant, Joseph A. Russell, was ever a partner of defendant, John Russell, and, therefore, the plaintiffs-could not recover. The plaintiffs’ right to recover did not depend upon the fact whether the defendant, Joseph A. Russell, was a partner of John Russell or not. The hypothesis of this instruction was faulty. The issue which the pleadings made, and which the jury should have been required to determine, was, whether the •defendant, Joseph A. Russell, was a partner of the firm of Russell Bros, when the goods were purchased of the plaintiff. If the jury should have found that the defendant, Joseph A. Russell, was, and that John Russell was not, a partner in said firm at the time the firm contracted the debt, the verdict should have been for plaintiffs against Joseph A. Russell. This ruling under the pleading and evidence of the case, is no invasion of the rule laid down in 2 Bates on Partnership, 626.

J udgment of the circuit court must be reversed, and cause remanded.

All concur.  