Faris v. Cook

62 S.W. 1043, 110 Ky. 867, 1901 Ky. LEXIS 154

• Court: Court of Appeals of Kentucky
• Decided: May 15, 1901
• Status: Published

Opinions

Opinion op the court by

JUDGE BURN AM

Reversing.

This is an appeal from a judgment of the Laurel Circuit Court, sustaining a general demurrer to t(he petition of appellant as amended, in which he sought to hold S G-. Steele liable as a partner of his co-defendant, A. K. Cook, for certain indebtedness paid by him as security for the firm. He alleged in substance, that in the year 1881,- Cook and Steele were partners in the business of contracting for and carrying the mails of tlhe United States, — a business generally known as that of United States mail bidders and contractors; that in the conduct of this business it was necessary to make and sign proposals, and to make, sign and execute with sufficient sureties, bonds- to the United States Government, and the execution of such bonds was a part -of, and within tlhe scope of, the partnership business, and that in the usual course of such business, and .in the customary way, the defendants, on the 20th day of January, 1881, executed a number of bonds' to the Government for carrying all the -mails between certain designated places, which were signed by A. K. Cook as principal, and by plaintiff and W. H. Jackson as securities; that, at the time of, and before the execution of these bonds Cook and Steele were -equal partners in the business, and by the terms of the partnership each member of the firm was to equally share any expenses, profits, and los-ses that might accrue from said partnership business ¡and were equally liable for the obligations of the firm; that at the time he -signed said bonds both Cook & Steele, as partners agreed to -and did use the name of Andrew King Cook, one of the members of said firm, to represent -the partnership or firm name in connection with the execution of said bonds, and that said bonds were signed and executed in the name of Cook for the partnership of Cook & Steele, and with the full knowledge, consent and approval of Steele at the time same was done, and that Steele not only authorized the execution of ¡said bonds by Cook in said Cook’s name, as representing the partnership, but adopted, ratified, and acquiesced in all the ¡acts of said Cook, all of which were done for the said firm, and that, at the time of and before he signed ■said bonds as surety Cooke and Steele represented to him and to others, with reference to said business, that they were partners ¡and acted for the partnership, and that by reason of said acts and assurances he wás induced to sign, ¡and did sign and execute, the bonds for said firm and partnership; that the defendants failed to keep their covenant and perform the services; and that by reason ¡of such failure and noncompliance with the conditions of their bonds, which plaintiff ‘Signed with Jackson as sureties thereon, he had been compelled to pay $1,250, with interest. Subsequently appellant filed an amended petition in .which he alleged that at the time the defendant made, signed and executed the bonds mentioned in his original petition, the name of Andrew King Cook was used therein by them as co-partners aforesaid, and said acts and transactions of said Cook were not for his benefit alone, but by agreement, understanding, knowledge, consent, and approval ¡of both of said defendants the name of Cook was used by the defendant for the purpose mentioned in the petition, for the benefit ¡of the firm, and in the 'transaction of the partnership business.

It is insisted for ¡appellee that the petition in this case is fatally defective because it fails to allege that Andrew King Cook was the partnership name under which the firm of Cook & Steele transacted business, and that under the bond as executed, the United States government had no cause of action against Steele, and that consequently appellant, the surety, oould have none against .him. We do not so understand the law. It was held by this court in Hikes v. Crawford, 4 Bush, 19, that a note executed by one partner in his individual name for the use and benefit of the firm was binding against the other partner, who did not sign the note, and that a surety in such note, after he had paid it, had a cause of action against the firm. The opinion in this case substantially followed the la.w as announced in McCart v. Lewis, 2 B. Mon. 267, and Burns v. Parish, 3 B. Mon 8; and the opinions in these- cases are in accord with the general principle. “Partners may conduct business under any name they choose. They may assume the name of one member, or any other name. The fact of the partnership is the essential thing, and the averment of a firm name is ordinarily immaterial, and proof of a partnership under some other name is not a fatal variance.” See 15 Am. & Eng. Enc. Pl. & Prac. p. 927. And to the same effect are Pars. Partn. 126, 127. Meacbam, in his work on Partners (section 201), says: “It is not uncommon for a firm to do business in the name of a single person, and contracts made in that name for the firm will bind all the members.” The signing of the -bonds by Cook was for the benefit of 'the firm, and it is admitted by the demurrer that Steele authorized the execution of the bonds, and that appellant was induced to become surety thereon by ihi-s representations that both members of the firm were bound by reason of the execution of such bonds. In our opinion, the -circuit judge erred, in sustaining a demurrer to the petition, and the caus-e is reversed, and remanded for proceedings consistent with this opinion.

Petition for rehearing by appellee overruled.