* Corpus Juris-Cyc. References; Partnership, 30 Cyc., p. 590, n. 16. This is an action for damages for personal injuries. Suit was instituted against several defendants, who were alleged to be copartners, operating an automobile agency under the name of the Kirkwood Motor Company.
On the nineteenth of November, 1921, while plaintiff, a pedestrian, was upon the traveled portion of Washington Avenue, at its intersection with Compton Avenue, in *Page 560 the city of St. Louis, he was struck by an automobile operated by John Heutel, one of the defendants named in the petition, and alleged to be a member of the copartnership. No service was had upon Heutel, Beecher, or Hoffman, and the plaintiff dismissed as to them. There was a verdict for the plaintiff in the sum of $4500, and the other named defendants filed a motion for new trial, which was by the court sustained. Plaintiff has appealed to this court from the order sustaining the motion for new trial, and, in view of the questions presented on this appeal, it becomes unnecessary to state in detail the facts with reference to how the accident occurred.
Briefly stated, it appears that, prior to September 1, 1921, defendant Shnell, and John Heutel had been conducting an automobile sales agency and repair business at Kirkwood, as partners. On or about the last-named date, they, with other defendants, executed articles of incorporation. It appears, that at the time Heutel struck plaintiff, he was driving a Packard automobile. The accident occurred late in the evening, about nine or ten o'clock. Heutel had a young lady in the car with him. After Heutel struck plaintiff, he took him to a hospital, and on visiting him the next day after the accident, he is alleged to have made certain statements to plaintiff to the effect that he was driving this automobile at the time on a trip to obtain and haul to the place of business of himself and his copartners a block and tackle to be used in the partnership business. The court granted defendants a new trial on the ground that the admission of this declaration of Heutel was error. It is sufficient to state that there was evidence tending to prove the partnership, aside from this declaration, but there was no other testimony to show that Heutel was transacting partnership business at the time the accident happened other than his declaration.
The court granted defendants a new trial on the ground that error had been committed in the admission of this declaration of Heutel, said to have been made to *Page 561 plaintiff the day after the accident, and a decision of this question disposes of the whole case here on appeal.
Learned counsel for plaintiff insists that the ruling of the trial court is in conflict with the rule of law as enunciated by our Supreme Court in Adair v. Kansas City Terminal R. Co.,282 Mo. 133, 220 S.W. 920, and cases therein cited. The Adair case lays down the doctrine that, where an action is founded upon a partnership liability, the admission of one partner is evidence against all. But the opinion in the Adair case does not support the contention of plaintiff; and the trial court's ruling, we think, was correct. Before the partners could be held liable for the tortious acts of Heutel, the copartner, the acts must be performed in the line of the partnership business. We do not understand plaintiff to make any serious objection to this proposition of law, but plaintiff's theory is that the admissions and declarations of the copartner are admissible for the purpose of showing that the one committing the tortious act was in the performance of a partnership duty or business at the time. This contention is not supported in law or in reason.
In 1 R.C.L., pages 54 and 55, it is said:
"The existence of a partnership having been admitted or proven, the declarations of one partner in relation to the affairs of the firm are competent evidence against all the members. But a partner's declarations or admissions do not bind his associates in concerns and transactions foreign to the partnership, and he cannot, by such declarations or admissions, bring a transaction within the scope of the partnership business when in fact it had no connection therewith."
In Edgell v. Macqueen, 8 Mo. App. 71, this court held that the admissions of a partner could not be introduced to prove that a transaction pertained to the partnership, and not to the individual making the admissions when that is the very matter in dispute.
There was evidence in the present case to prove partnership without the admissions and declarations of *Page 562 Heutel, but there was no evidence, aside from such admissions or declarations, to show that Heutel was in the performance of a partnership duty or transaction at the time plaintiff was injured. In fact, the circumstances surrounding this case would indicate to the contrary. It would, therefore, be an unjust rule to permit Heutel to commit a reckless act of this kind and then saddle the liability upon the partnership by his admissions and declarations alone. [Slipp v. Hartley, 50 Minn. 118; Kaiser v. Fendrick, 98 Pa. 528.]
The judgment of the trial court is affirmed, and the cause remanded. Daues. P.J., and Becker, J., concur. *Page 563