Frayser v. Moore

22 Kan. 115

• Court: Supreme Court of Kansas
• Decided: January 15, 1879
• Status: Published

Opinion

The opinion of the court was delivered by

Horton, C. J.:

The only question presented is, whether the court below erred in sustaining the demurrer of defendant in error to plaintiff’s petition. We think it did. The defendant agreed for a sufficient consideration to let plaintiff draw out of the firm of Osbun & Co., of which he was a member, $660 of merchandise. To this agreement, Osbun & Co., for value, assented. Afterward, both Moore and Os-bun & Co. refused to deliver the merchandise to the plaintiff, when demanded. The $660 in merchandise was a part of the purchase price of the interest of Frayser in the firm of Osbun & Co., which Moore agreed to turn over to Frayser. When Moore and Osbun & Co. refused to deliver the goods, Moore became liable on his individual contract for all damages accruing to Frayser by reason of his failure to comply with his agreement. Again, he was liable as a member of the firm of Osbun &'Co.; for, by its action, that firm also became liable to the plaintiff for the value of the merchandise which it refused to deliver in accordance with its contract. Under our statute, in all cases of joint obligations and joint assumptions of copartners or others, suits may be brought and prosecuted against any one of those who are so liable; therefore there was no defect of parties in the petition. The petition stated sufficient facts, and the demurrer ought to have been overruled.

The judgment of the district court must be reversed, and the cause remanded, with direction to the court below to overrule the demurrer of defendant.

All the Justices concurring.