Rappell v. Rebham

6 Ky. Op. 311, 1873 Ky. LEXIS 125

• Court: Court of Appeals of Kentucky
• Decided: January 13, 1873
• Status: Published

Opinion

Opinion by

Judge Pryor:

The evidence in this case conduces to show a partnership between the defendant to the action in the purchase of hogs. They are declared against as joint .purchasers of the hogs alleged to- have been sold them by the appellee, and although the proof may disclose the existence of a partnership, still it does not defeat the right of recovery because they are declared against as jointly liable.

T. B. Fairleigh, appellant. Gazlay, Yeaman & Reinecke, appellee.

If the hogs were sold to- them jointly the proof that they were partners only shows their joint liability. If property is sold to a firm engaged in buying stock or in other business pursuits, if they are all declared against as having purchased it, we see no reason why a recovery cannot be had in the absence of any allegation that they were partners. That they are jointly' liable is unquestioned, and they are presumed to know whether this joint liability arises from a contract of partnership or otherwise, and not the party instituting the action. If one of the parties should be omitted the only mode of taking advantage of it under the ruling in Chitty was by plea in abatement. The weight of the testimony shows a joint liability.

Judgment affirmed.