Yergler v. Kaufmann

176 Ill. App. 563, 1912 Ill. App. LEXIS 98

• Court: Appellate Court of Illinois
• Decided: November 12, 1912
• Status: Published

Opinion

Mr. Presiding Justice Thompson

delivered the opinion of the court.

J. W. Kaufmann filed a bond for an appeal on February 15, 1912. On the same day both the defendants filed a joint and several bond for an appeal. J. W. Kaufmann on March 25th gave a notice with a copy of the praecipe for a record to counsel for appellees, that on March 30th, they would file such praecipe for a record in his appeal. The praecipe was filed that day. This praecipe calls for the process, pleadings, decree, orders of court and certain portions of the evidence and certain exhibits selected here and there from the report of evidence made by the master. The defendant on April 3, 1912, perfected his several appeal by filing in this court a transcript of the record, called for by the praecipe, which contains seven hundred pages. On the same day J. W. Kaufmann and Samuel A. Kaufmann perfected their joint appeal by filing a transcript of the record, consisting of over 3,000 pages, which contains all that is in the transcript filed on the appeal of J. W. Kaufmann with the full report made by the master, and also depositions taken in the case and attached exhibits which were not reported by the master. No praecipe appears to have been filed for the record in the joint appeal. J. W. Kaufmann assigns errors on the record filed by him and also jointly with Samuel A. Kaufmann assigns errors on the record in the joint appeal. The two appeals were consolidated in this court.

It is assigned for error that the cause should not have proceeded to final hearing without A. 0. Buby having first been made a party to the cause. The proof shows that by agreement of all the copartners the interest of J. E. Kramer was bought by the remaining copartners, and that by agreement of all the remaining copartners the interest that J. E. Kramer had had in the partnership was sold to A. C. Buby. Buby gave two notes to the partnership for that interest. These notes were transferred by the partnership to a bank, and the note first maturing not being paid when due, Emil Kramer and B. B. Tergler, who had indorsed it, paid both notes by giving their individual note, and now claim that such act was a purchase of the interest of Buby. The evidence does not show that either Samuel A. Kaufmann or J. W. Kaufmann his attorney in fact had any notice that Kramer and Tergler had taken up the notes of Buby. Before Buby could relieve himself from any liability as a copartner and change the liability of Samuel A. Kaufmann, said Kaufmann must have consented or agreed to such a change. Partners who buy a note, that another partner owes to the firm, will not thereby take the place of the partner whose note they have paid. While in equity they may be entitled to be repaid from his interest, such purchase will neither deprive him of any surplus he may have in the partnership assets nor relieve him from any liabilities incurred after he becomes a partner.

The court found that B. B. Tergler is the only member of the firm who has anything outside of his interest in the business, and that if there was a deficiency of assets that deficiency should be made up in certain proportions by the partners. If Buby was either a partner and liable for any of the deficiency, or merely the owner of a partnership interest, then it is manifest there is error in the decree and it was error to proceed to a decree without making him a party.

It is also assigned for error that the trustees of the Merchants’ Association of Paxton were necessary parties to the suit. The Merchants’ Association had conditionally agreed to give the partnership certain real estate upon which to operate its factory; the title to this property was to be conveyed to the partnership when it had paid wages amounting to $60,000 exclusive of wages paid to office help and salesmen. While on a dissolution of the partnership the rights of the partnership and the citizens’ association will ultimately have to be settled, yet, they cannot be adjudicated in a suit to dissolve the partnership. The issues in such a matter are not germane to the dissolution of the partnership and the trustees of the Merchants’ Association of Paxton were neither proper nor necessary parties so far as shown by the record in this case.

It is also assigned for error that the court erred in finding that J. W. Kaufmann had withdrawn $315.49 from the assets of the firm and in directing him to pay said sum to the special master within thirty days. The court did not find that J. W. Kaufmann was a partner. He was the attorney in fact of Samuel A. Kaufmann. Samuel A. Kaufmann, the partner, may be liable to be charged in this suit for the dissolution of the partnership, with the sum withdrawn by his attorney in fact, but the accounting between the partnership and J. W. Kaufmann, if he is. to be charged simply as an employee or debtor of the partnership, cannot be tried in the suit for the dissolution of the partnership. If he is required to personally account for moneys appropriated by him, that would properly be tried in a suit at law. If his acts in appropriating the money- were the acts of his principal, Samuel A. Kaufmann, then the court would have the right in settling the rights of the partners to charge Samuel A. Kaufmann, the partner, with the acts of his agent and should also give Samuel A. Kaufmann credit for any moneys advanced by his agent for him. The court erred in rendering a judgment for $315.49 against J. W. Kaufmann, who was not found to be a partner.

The appellants having made needless costs by perfecting two appeals they will be charged in the last appeal with a proportion of the costs equal to the cost of the record in the first appeal, which is the smaller record, and the clerk’s costs in the second appeal.

Reversed and remanded.