concurring. — I concur in the result, and the general reasoning of the opinion of Hall, J. Without attempting to set forth other-arguments, which occur to my mind in support of the conclusion reached by him, I will simply add: that among the recognized rules for the j>roper construction of statutes are the following: The intention of a legis-lative act may often be gathered from a view of the whole and every part of a statute taken and compared together. When the true intention is accurately ascertained it will always prevail over the literal sense of the terms. When-the expression of a statute is special or particular, but the reason general, the special shall be deemed general, and the reason and intention of the law-giver will control the-strict letter of the law, when the latter would lead to palpable injustice, contradictions, and absurdity. In the Matter of Bomino’s Estate, 83 Mo. 441.
It may be conceded that it was the purpose of the legislature that the sworn statement of the special partner should express the absolute truth; yet in determining this matter regard must be had to the general scope of the whole statute. So, if the thing sworn to be true, according *476to the spirit and aim of the statute, it is a legal truth, from which no liability can spring.
Our statute differs materially from those of the states of Massachusetts and New York, relative to this issue, in that ours contemplates and allows an agreement to pay in the future, whereas theirs requires that the payment shall actually have been made in cash at the time of making the affidavit.
To sustain the logic of appellant’s contention it must be asserted and maintained: that if the statement of respondent, when sworn to, had been that he would pay one thousand dollars ten days thereafter, and it were developed at the trial that as matter of fact he had paid one thousand dollars the day before he had made the affidavit, in contemplation of the statute, the affidavit was false, and the affiant would not only be bound as a general partner, but could be sent to the penitentiary as a perjurer. If such a construction would not lead to palpable injustice and absurdity it would be difficult to conceive one which would.
Carried to its logical sequence, in sticking in the bark •of the literal words of the statute, had the respondent sworn to a statement on the first day of the month that he would pay one thousand dollars on the tenth day thereof, and the fact should appear at the trial that he paid on the ninth day of the month, he would be held as & general partner, and be challenged as a perjurer bound for the penitentiary. Such a construction would not only lead to injustice and absurdity, but would shock humanity itself.
By section 3408 of this act, it is declared, that: “If the whole or any part of the capital advanced by a special partner be by him withdrawn, or if he fail to actually contribute toward the capital as by Mm agreed, he shall be liable as a general partner.”
It seems to me that this section, read in connection with others, clearly enough indicates that the general aim .of the legislature was to secure actual payment, within *477the time agreed, to perfect the organization, and to enforce it by certain liabilities and penalties.
And, therefore, where the party did actually pay, as agreed, before the partnership was completed and took effect, and before any rights, duties or obligations had attached, or could attach, the object of the statute would be accomplished. “ A thing within the intention of the legislature in framing the statute is sometimes as much within the statute as if it were within the letter.” In re Bomino, supra.
To hold this respondent as a general partner, on the facts of this case, when he had paid his money, according to agreement, before the completion of the partnership, before any one had dealt with the concern, or any right or obligation arose, savors so much of injustice and spoliation, that I have been unable to find sufficient reason, or authority, based on a parallel statute, to satisfy my judgment and conscience.
In respect of the point made on the fact that respondent’s statement was not true, touching the amount paid by the other parties, and the sums to be drawn out by them, it is, it occurs to me, sufficient to say, that those were matters and facts not required by the statute to be stated. It was mere surplusage. The legislature saw fit to prescribe that certain facts should be sworn to, and attached a certain liability for falsely stating these, and none others.
And, necessarily, where the plaintiff invokes the statute, to fix upon the defendant the liability, he must stand or fall by the statute. If the defendant had stated that the other partners were millionaires, or Hebrews instead of Gentiles, native instead of foreign born, and such statements had been false, could it be maintained that he could be held as a general partner on that account % If this were an action on the case for fraudulent representations, and the like, whereby, etc., the falsity of such statement might become material. But it has no place in this action.