Leckie v. Rothenbarger

Missouri Court of Appeals

Leckie v. Rothenbarger

82 Mo. App. 615, 1900 Mo. App. LEXIS 287

DecidedFebruary 5, 1900

StatusPublished

This text of 82 Mo. App. 615 (Leckie v. Rothenbarger) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Leckie v. Rothenbarger, 82 Mo. App. 615, 1900 Mo. App. LEXIS 287 (Mo. Ct. App. 1900).

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Opinion

ELLISON, J.

Plaintiff sued defendants on items of debt, charging them to be a partnership under the name and style of the “Castle Rock Mining Company.”

The answer, among other things, charged that plaintiff was a member of said partnership. The evidence tended to prove that plaintiff was, ostensibly at least, a member of the partnership. That he went into and continued in the partnership in his own name. That the other members of the partnership supposed he was acting for himself, he never disclosing to them anything to the contrary. But it seems that he was, in reality, acting as the secret agent of his wife. The trial was before the court without a jury and a declaration of law was given to the effect that, if plaintiff went into and continued in such partnership in his own name, without disclosing that he was an agent for his wife, and the other partners, having no knowledge of his agency, supposed he was acting for himself, then he was, as to the remaining partners, a mem[617]*617ber of tbe firm; and there never having been a settlement of the partnership affairs, plaintiff eonld not recover. The finding was for defendant under this declaration.

It being conceded that one partner can not sue his fellow partners prior to an adjustment of the partnership affairs, the question presented here is, does a secret agent of an undisclosed principal become a member of a partnership to the remaining members who are in ignorance of his agency? We are of the opinion that he does. Such is the rule of law in other business relations and we can not discover any reason why it should not be applied to a partnership.

In matters of contract, the secret agent can be held as originally liable, or the principal, when discovered, can be held. McClellan v. Parker, 27 Mo. 162; Hamlin v. Abell, 120 Mo. 188; Porter v. Merrill, 138 Mo. 555. So a creditor of a partnership could maintain an action against the secret agent, or he could hold the undisclosed principal when discovered. But persons by entering into a partnership enter into contractual relations with each other, and the same rule of law finds application as between them. The agent may be held by them to the responsibilities of a partner in fact. We do not see that the case of McDonald v. Matney, 82 Mo. 358, has any application to this case.

The judgment is affirmed.

All concur.

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ELLISON, J.

Plaintiff sued defendants on items of debt, charging them to be a partnership under the name and style of the “Castle Rock Mining Company.”

The answer, among other things, charged that plaintiff was a member of said partnership. The evidence tended to prove that plaintiff was, ostensibly at least, a member of the partnership. That he went into and continued in the partnership in his own name. That the other members of the partnership supposed he was acting for himself, he never disclosing to them anything to the contrary. But it seems that he was, in reality, acting as the secret agent of his wife. The trial was before the court without a jury and a declaration of law was given to the effect that, if plaintiff went into and continued in such partnership in his own name, without disclosing that he was an agent for his wife, and the other partners, having no knowledge of his agency, supposed he was acting for himself, then he was, as to the remaining partners, a mem[617]*617ber of tbe firm; and there never having been a settlement of the partnership affairs, plaintiff eonld not recover. The finding was for defendant under this declaration.

It being conceded that one partner can not sue his fellow partners prior to an adjustment of the partnership affairs, the question presented here is, does a secret agent of an undisclosed principal become a member of a partnership to the remaining members who are in ignorance of his agency? We are of the opinion that he does. Such is the rule of law in other business relations and we can not discover any reason why it should not be applied to a partnership.

In matters of contract, the secret agent can be held as originally liable, or the principal, when discovered, can be held. McClellan v. Parker, 27 Mo. 162; Hamlin v. Abell, 120 Mo. 188; Porter v. Merrill, 138 Mo. 555. So a creditor of a partnership could maintain an action against the secret agent, or he could hold the undisclosed principal when discovered. But persons by entering into a partnership enter into contractual relations with each other, and the same rule of law finds application as between them. The agent may be held by them to the responsibilities of a partner in fact. We do not see that the case of McDonald v. Matney, 82 Mo. 358, has any application to this case.

The judgment is affirmed.

All concur.

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