"Non failing node" does not mean "Non partitioned node", simple as that.
If you treat a partitioned node as "failed", then CAP does not apply. You've simply left it out cold with no read / write capability because you've designated a "quorum" as the in-group.
If you treat a partitioned node as "failed", then CAP does not apply. You've simply left it out cold with no read / write capability because you've designated a "quorum" as the in-group.