dissenting:
I respectfully dissent from the majority opinion on the question of damages. I agree that Scott is liable as a partner.
In a petition filed by Scott in this case, he mentions the case of Hertz Equipment Rental Corp. v. Highland Lake Construction Co., et al., then pending in the Circuit Court of Cook County. In a recent opinion in the Appellate Court for this District, Third Division, decided August 17, 1972, 7 Ill.App.3d 184, 287 N.E.2d 330, that case was decided, the court affirming a jury verdict of the Circuit Court finding Scott and Highland to be partners in the Dan Ryan Expressway venture. I think that opinion reinforces the position of the plaintiffs in the case before us and Scott is liable as a partner.
On the question of damages, I think where Scott is a partner and liable, he is also entitled to claim the assets and credits of the partnership. In his affidavit in opposition to the summary judgment as to damages he says, in paragraph 12, that Highland had billed the plaintiffs $45,562.20 for performance of the subcontract and was paid $27,000, leaving a balance due of $21,562.50 [sic], which was more than the payroll advances being claimed by the plaintiffs. I believe, if this allegation is true, the partner, Scott, was entitled to the setoff due the partnership and no money is due plaintiffs.
The majority opinion says because Scott states in his affidavit he has been “informed” plaintiffs owe the aforesaid money, that is not sufficient to allow him to testify, and the affidavit is insufficient. I disagree. A partner has to be informed of the condition of the books and records of the company by either his bookkeeper or accountant and certainly can testify from those books and records when called as a witness. The word “inform” is defined in the American CoUege Dictionary as “to impart knowledge of a fact or circumstance,” also “to supply oneself with knowledge of a matter or subject.” Therefore, when Scott says he is “informed” he states he has knowledge of the fact. Furthermore, plaintiffs did not dispute this statement nor contradict it in any way, and it stands admitted. A defense of payment on a debt is a good defense, and it is elementary that a setoff is a payment. In my opinion an issue of fact has been raised as to the damages, and Scott is entitled to a hearing on that question.
I would reverse the summary judgment as to the damage portion and hold a hearing thereon.