Bobb v. Lambdin and Bennett, 7 Mo. 601

Opinion of the. Court, delivered by Tompkins, Judge. Lambdin and Bennett commenced an action of assump--sit against John Bobb, John B. Bobb, and Charles Bobb, as partners in business. They obtained a judgment against Charles Bobb, which in this appeal he seeks to reverse. Charles Bobb pleaded to the action, and the plaintiffs do not prosecute tlieir suit against John Bobb and John B. Bobb.

The two first counts in the declaration are special, and demand damages of the defendant for failing to furnish a quantity of rope according to a contract set out in those counts ; the third is a common count for money lent and advanced to, and paid, laid out an^ expended, &c., for the use of the defendants. On the trial it was proved, that John B. Bobb, by the name and description of John B. Bobb & Co., of Pike county, Missouri, of the one part, and Lambdin & Bennett of Natchez, State of Mississippi, of the other, made an agreement in writing, by which John B.

Bobb & Co. .promised to furnish tliree hundred coils of bale rope of a certain weight, at seven and three-fourth cents per pound. In the course of a year the 2U’ice of rope nearly doubled itself, and the defendants in the action, John B. Bobb, John Bobb, and Charles Bobb, failed to furnish the rope ; and Lambdin and Bennett brought this suit. The plaintiffs proved the payment to John B. Bobb of more than five hundred dollars on account of this contract, and much evidence was given to prove a partnership of John B. Bobb, John Bobb, and Charles Bobb, in tixe making of rope, &c.

Evidence was given of admissions on the part of John Bobb, that John B. Bobb was a partner; but there was no evidence of any admission, of that fact by Charles Bobb. There was much evidence of the employment of John B. Bobb about the factory as a super-intendant, and as a maker of contracts with laborers employed in the factory. The court, on motion of the defendants, instructed the jury, 1st, If they find for the defendants, they will say so in their verdict; but if they find for the plaintiffs, and assess damages for them, then they will state in their verdict, under which count in the declaration. 2d.

The plaintiffs cannot recover in this action on either of the two first counts of the declaration, as neither of said counts sets forth any legal cause of action against the defendant, Charles Bohb. If the jury believe from the evidence, that John B.

Bobb was the only person originally liable for the money originally advanced by the plaintiffs on account of the contract offered in evidence by them, the defendant, Charles Bobb, cannot be made liable therefor by any declarations or promises to pay the same subsequently made by the defendant, or John Bobb, unless they shall be satisfied from the evidence that such promise was made to the plaintiffs or their agent in writing, and signed by the party be charged, or unless the same was received to the use or benefit of the defendant. a party who seeksí° r.°", verso the juug-snent of the'' grant him a trial* whore all the aslceiUiy0 Wm vc:c g'iv0II> must make out case freo doul:>t‘ And the court also further instructed the jury as follows : This suit, as it now stands, is against Charles Bobb alone, it having been dismissed as to the other two defendants.

If the jury believe that Charles Bobb was not a partner with John B. Bobb, in the firm of John B. Bobb & Co., and that Charles Bobb, or any member of the firm, received any sum or sums of money on account of, or in advance of the contract read in evidence, the jury must find for the plaintiffs as to that amount, under the third count of the declaration. If the jury believe that Charles Bobb was not a partner of John B. Bobb, but that John B.

Bobb was their agent; and that the plaintiffs advanced certain sums of money to the firm of which Charles Bobb was a member, which sums of money were received by any member of the firm, or by their authorized agent for their use, they will find for the plaintiffs for the amount of such sum of money, under the third count of the declaration. The jury found for the plaintiffs on the third count; as-, sessed their damages to $383.25.

Judgment was given ^ « t> accordingly, and a new trial was prayed for the usual reasons, and the overruling of the motion is of as error committed by the court of common pleas. * ■*- All the ins tractions asked by the defendant, Bobb, were given ; and tbe court even gave in bis favor instructions which he did not ask. Indeed, tbe plaintiffs might right- . , , . , ,, , 7 . ° ,D rally nave complained that the court instructed the jury, on the defendant’s motion, that the plaintiffs could recover in this action on either of tho-two first counts of the declaration.

Evidence had been given to prove a partnership of John B. Bobb, John Bobb, and Charles Bobb. That evidence was Certainly of a character rather contradictory. But a jury might in some cases give credit to such fcesti-mony. Payment of more than five hundred dollars bad Proved John B. Bobb by the plaintiffs, and their verdict against the defendant was for a much smaller sum. It seems to me that the defendant has no reason to complain, and could have had none even if they had found a larger sum against him.

It may be very true that not one cent of this money was received for his use or benefit ; it may also be true that no partnership ever existed betwixt himself and John B. Bobb. Yet it was owing to his own negligence, if they were not partners, that John B. Bobb was enabled to hold himself forth to the world as a partner : indeed, it often happens that the community have no other means of ascertaining who are partners than the means furnished by the conduct of such parties. I can see no reason for reversing the judgment of the court of common pleas. Its judgment is therefore affirmed.