BLAIR, Judge.
The petition was filed in February, 1951, in the Circuit Court of Taney County. It was originally in two counts, and defendant filed an answer to such petition on March 3, 1951. The application of plaintiff for change of venue was granted, and the case sent to Greene County, where a jury was waived.
On August 15, 1951, defendant filed its amended answer, to which plaintiff filed its reply on August 23, 1951.
On November 8, 1951, the second count of the petition was dismissed by plaintiff, leaving for our consideration only the facts alleged in the first count of plaintiff's petition.
On November 10, 1951, the trial court rendered its judgment for plaintiff, in the sum of $1,001 and costs. Being unsuccessful in its motion for a new trial, defendant has appealed to this Court.
On April 3, 1951, and before the case was sent to Greene County, a motion to dismiss the case was filed by defendant, bearing the signatures of Volney A. Poulson and Bertha Irvin, who claimed to have been partners in the Brown Construction Company, and they alleged that this suit was filed without their consent. Judge White very properly ruled that another law suit could not be tried with this one.
The evidence discloses that, at the time the petition in the case was filed, Poulson and Brown had dissolved partnership, due to a quarrel or misunderstanding. Plaintiff and Poulson had not been partners in the Brown Construction Company since the latter part of January, 1951, when such dispute arose. Defendant knew that fact. There was no proof whatever in the record, except the motion itself, that Bertha Irvin had ever been associated as a partner in the business of plaintiff, the Brown Construction Company. Such allegations do not prove themselves.
The relationship between Brown Construction Company and Volney A. Poulson was peculiar. They were partners in some matters and not partners in other matters. Plaintiff was a builder and Poulson was the engineer of Taney County. They were advised that they could not be partners.
Plaintiff took a contract from the County Court of Taney County for the erection of a court house. Forsyth was the County Seat of Taney County, and the erection of a new court house and of schools and sewers of a public nature, became necessary, on account of the expected overflow from the waters of the dam in White River, to be constructed.
Oliver P. Jones, of Holister, was a member of the County Court and the cashier of the bank, which is the defendant. He was possibly confused by the frequent changes in the names of plaintiff, but there is no proof in the record of any person or persons interested in the partnership.
In the erection of a court house for Taney County, Missouri, Volney A. Poulson was sort of a silent partner, sometimes under the names of Volney A. Poulson and George W. Brown, the Brown Construction Company, George W. Brown and wife, and probably other names. On each account in the bank a card was left with defendant showing who was authorized to check on the partnership bank account.
On or about January 23, 1951, plaintiff and Volney A. Poulson, as aforesaid, had a misunderstanding or dispute, and George W. Brown removed and carried away from their office the various records tending to show the relationship between him and Poulson.
Defendant knew that at that time Poulson was not authorized to sign checks or notes of the Brown Construction Company on the defendant herein, as the evidence tends to show. On January 23, 1951, without any authority so to do, Volney A. Poulson signed a note, purporting to carry the signature of plaintiff, for $1,000, which was marked paid on January 25, 1951, and on the latter date Poulson drew a check on plaintiff's bank account for the sum of $1,000, with $1 additional, as service and interest charges. Such check was debited by defendant against plaintiff's account in the bank of appellant.
As the note for $1,000 dated January 23, 1951, was paid by the debit of $1,001 against the account of plaintiff, he was injured to that extent, and the court was justified in finding that he had been damaged to that extent. Plaintiff is entitled to a judgment against appellant in the sum of $1,001, as his debt and damages. The judgment of the Circuit Court of Green County thus finding should be affirmed.
It is so ordered.
McDOWELL, J., concurs.
VANDEVENTER, P. J., concurs in result.