Fletcher v. Cain

3 Ky. Op. 596, 1869 Ky. LEXIS 513

• Court: Court of Appeals of Kentucky
• Decided: September 28, 1869
• Status: Published

Opinion

Opinion of the Court by

Judge Williams:

The evidence leaves no room to doubt but that Durrett, Cain and Matthew Fletcher were partners in the forage pressing business and that as the presses were bought with the profits of the concern they became partnership property, hence, whilst unsold either party had the right to have them stored and cared for and the bailee should be allowed a reasonable compensation therefor, though the partnership may have previously ceased.

If the suit' had been dismissed for want of proper parties, because all the partners were not made defendants in the warrant before the justice of the peace, though before trial it was dismissed as to all but Cain, this should have been done without prejudice and not by peremptory instruction, as in this case, to the jury to find for the defendant, which will bar any other suit, so whether upon the merits or for want of proper parties said instruction was erroneous.

Wherefore the judgment is reversed with directions for a new trial and further proceedings.