54 Mo. 585 | Mo. | 1874
delivered the opinion of the court.
This is an action to recover the price of goods alleged to have been sold and delivered by the plaintiffs to defendants-The petition states that the plaintiffs were partners, and as such sold and delivered goods to defendants; and is in the usual form. The answer of the defendants fails to deny that the plaintiffs were partners, but denies all other allegations in the petition, a trial was had before a jury. On the trial the evidence tended to prove that plaintiffs were partners engaged in selling boots and shoes in Kansas City, Mo.; that in the fall of the year 1868, defendants were engaged as partners in the dry goods business at "Wyandotte, in Kansas; that at said time one S. B. Hanway came to the store of plaintiffs and wanted to purchase goods of the plaintiff on credit ; that the plaintiffs refused to sell Hanway goods on credit; that Hanway applied to plaintiffs at different times to purchase goods on credit, but that plaintiffs positively refused to sell. The plaintiff then offered to prove a partnership between the defendants and S.B. Hanway. This evidence was objected to by the defendants on the ground that no such partnership was charged in the petition. The court admitted the evidence of partnership, subject to be passed on and determined by instructions to be given by the court at the conclusion of the plaintiffs’ evidence. It was then shown by the evidence that the goods sued for were sold by plaintiffs at the time and for the price named in the petition; that the charge made in the books for the goods was made against Hanway; that after plaintiffs refused to sell goods to Hanway, defendant Watson came to plaintiffs’ store and said to plaintiffs that he and Huskins were going in with Hanway and were going to take the goods down to the Indian country to trade for cattle and stock, and that it would be all right. Watson said they were going to take the goods hy teams to the Indian country; that Hanway was an old experienced cattle trader; that Huskins was going along with him to do the financeering; that the cattle were to be sent up to Kansas City aud that he, Watson, was to have the management at that end of the line, and sell the cattle.
One E. A. Phillip testified that in the fall of 1868, he was a member of the firm of Plant & Co. in Kansas City, that he knew defendants and J. B. Hanway ; that in November 1868, Hanway came to witness’ firm and wanted to purchase goods of them on credit; that they refused to sell him the goods ; that defendant Watson then came to witness and stated, “we are going in with Hr. Hanway.” He gave no name as to who were meant by “we;” that witness traded in wagons ; that defendants and Hanway took a stock of goods south to the Indian country; that Watson wanted witness to let Hanway have a certain number of wagons, by paying only part for them at the time, less than witness was willing to take. Watson said we are going in with Hanway and would see that he got his pay. ITe made a statement of what they proposed to do. He said they would take a stock of goods to the Indian couutry
This was substantially the evidence in'the ease. At the close of the plaintiffs’ evidence the court instructed the jury as follows : “ The jury are instructed that on the pleadings and evidence in this case the plaintiffs cannot recover.” After the giving of this instruction the plaintiffs suffered a non-suit with leave to move to set the same aside,which motion having been made and overruled by the court, the plaintiffs appealed to this court.
During the examination of one of the plaintiffs as a witness on the trial of the cause, he was asked whether he had sold the goods on the faith of Watson’s representations that he and Huskins were going in with Hanway. This question was excluded by the court, and the exclusion of this- evidence is assigned as error in this court. This evidence would tend to prove that the credit was not given exclusively to Hanway on his individual account, and might be material, if the other evidence in the case should be held to be sufficient to prove a partnership, between Hanway and the defendants, and that the goods were purchased for the use of the partnership. Yet in a case like this where some of the evidence tended to show that
The only remaining question to be considered is, does the evidence in the ease tend to prove a partnership between Han-way and defendants in the goods purchased % It seems to me that the evidence strongly tends to prove the partnership. It is true that the particular terms of the partnership are not shown; nor does the evidence tend to show them, nor is it necessary that it should do so. It is sufficient if the evidence tends to prove that the defendants, held themselves, out to plaintiffs and others, as partners in the particular transaction. The evidence in this case is very similar, to the evidence in the case of Rippey vs. Evans, 22 Mo., 157, where it was not only held to be evidence of a partnership, but that it was sufficient after verdict. In this case the evidence not only tends to prove a partnership on the one hand, but portions of the evidence tend to prove, that the credit was given to Hanway only. Both of these questions should have been submitted to the jury under proper instructions.
The judgment will be reversed, and the case remanded.