Blythe v. Primeau

35 Mo. 529

Opinion

Wagner, Judge,

delivered the opinion of the court.

This is a suit on account brought by James E. Blythe, administrator of the éstate of George E. Denny, against Charles Primeau, for goods.; wares, and merchandise, furnished to the firm of P. Pasquier & Co. by the firm of Capen & Denny.

It appeared in evidence that George E. Denny, one of the firm of Capen & Denny, lived and died in St. Louis, and that said Capen lived in Boston, Massachusetts, and died there soon after the death of Denny in St. Louis; that they were the sole members of the firm of Capen & Denny; that the defendant was, as one of the partners of P. Pasquier & Co., indebted to the late firm of Capen & Denny, as alleged in the petition.

Plaintiff then proved by a witness that under letters of administration, which he proposed introducing in evidence, he had charge of the assets of the firm of Capen & Denny, acting under and by virtue of said letters.

Plaintiff then offered in evidence letters of administration granted him by the St. Louis Probate Court, authorizing him to administer on the effects of George E. Denny, which were read, subject to an. objection by defendant’s counsel on the ground that said letters gave plaintiff no right to administer the co-partnership estate of Capen & Denny; the court sustained the objection and plaintiff duly excepted.

Plaintiff then took a non-suit with leave to move to set the same aside, which motion being made and overruled by the court, he brings the case here by appeal.

The principal question presented for decision in this case is, was the plaintiff duly authorized to administer the co-partnership effects of Capen & Denny?

By the Rev. Stat. 1855, p. 121 and following, it is provided that if one co-partner die, “any surviving partner, resident of this State, shall have the right to give bond as hereinafter required ” and then he may take charge of the co-partnership estate.

This law limits the right to a resident surviving partner. Here Capen was a non-resident, and, had he lived, could not have administered on the co-partnership effects of the late firm of Capen & Denny.

Where the surviving partner neglects or refuses to give the required bond within the time limited (thirty days), then it is the duty of the executor or administrator on the estate of such deceased partner to forthwith take the whole part-nersliip estate, goods and chattels, rights and credits, into his possession; and he shall be authorized to use the name of the survivor in collecting the debts due the late firm, if necessary, and shall with the partnership property pay the debts due from the late firm, &c. But before proceeding, however, to administer upon such partnership property, he shall be required to give further bond, conditioned that he will faithfully execute that trust. (R. 0. 1855, §§ 58 & 59, pp. 123 & 124.)

The court below excluded the letters of administration offered by the plaintiff, without giving him an opportunity of introducing in evidence the further bond required by statute. In this the court committed error. It should have received in evidence the plaintiff’s letters of administration, in order that he might be enabled to give in evidence the further bond required by law, showing that he was legally entitled to take charge of and administer the partnership assets.

The judgment of the said court will therefore be reversed and the cause remanded;

Judge Lovelace concurring herein.