Burt v. Collins — 2 Cal. Unrep. 256

Majority

p. 256

BURT and Others v. COLLINS and Others.

January 29, 1884.

3 Pac. 128.

Headnote

Partnership.—A Partnership is not Liable for Goods Sold and Delivered to One Partner in his individual capacity, though the items he charged in the partnership account.

APPEAL from the Supreme Court of San Bernardino County.

This action was brought to recover of defendants, doing business of sheep-raising, as partners, under the name of G. A. Collins & Co., a balance on an account of goods sold and delivered. There was evidence that a portion of the goods had been purchased by Collins in his individual capacity and charged to the firm account. The court found the fact of the partnership and of the sale of the goods to the firm, and thereon rendered judgment against defendants. Defendants appealed from this judgment.

p. 257

Brunson & Wells for appellants; Bicknell & White for respondents.

Finding 3 is not sustained by the evidence. The evidence of B. F. Burt, one of the plaintiffs, found on page 44 of the transcript, shows that when the account was opened with Collins the object of using the firm name of G. A. Collins & Co. was for the personal convenience of Collins in his subsequent settlement with the herders and Mrs. Bouton, and not with the expectation that the account was the account of the firm. Besides, many of the articles sold (and charged in the account of the firm) were for the use of Collins and his family, and bore no relation to the business of the firm; and the plaintiffs did not, on the trial, segregate these items from the general account, nor show which items of the general account were for the benefit of, or went to the use of, the firm.

Judgment and order reversed and cause remanded for a néw trial.

We concur: Morrison, C. J.; Ross, J.; McKinstry, J.