Fagan v. Long

30 Mo. 222

Opinion

Scott, Judge,

delivered the opinion of the court.

This judgment must be reversed for the contradictory instructions given by the court.

An incoming partner is not liable for debts contracted before he enters the partnership. For such debts no member of the firm can, by using the partnership style, bind the incoming partner. But an incoming partner may, by his agreement, become liable for such debts ; and with the understanding and consent of all parties a note may be given in the partnership name for such debt. The new firm, with the consent of the creditor, may novate the debt. (Story on Part. § 152-3.) The instructions given for the plaintiff were erroneous.

The law now allows a party to a suit to examine any adverse party. Shields was an adverse party to the plaintiff, ^though we can see that he was a willing witness for him. A codefendant, who is primarily liable for the debt claimed, is a competent witness for the plaintiff. (Bank of Charleston v. Emerie, 2 Sand. 718.)

As the defendant Shields did not join the appeal, there was a right to sever him. (Perry v. Block et al., 1 Mo. 342.)

Judge Ewing concurring, the judgment is reversed and the cause remanded. Judge Napton absent.