27 Mo. App. 302 | Mo. Ct. App. | 1887
I. It is fairly inferable, from the record in this case, that the written admission made by the defendant’s attorney with reference to the accounts of B. F. Heiny & Company and Heiny & Hooper was acted on by the plaintiff, and hence it belongs to that class of agreements entered into in the course of judicial proceedings which are styled contractual, and, of consequence, its binding force could not be impaired by an attempt to withdraw the admis
No surrounding circumstances are brought to our attention which place these two accounts in a different light from that in which the others sued on stand. In the absence of such difference, and of specific language clearly disclosing an intention to admit any fact beyond those which were merely matters of formal proof, we cannot hold that the general terms which were employed require a construction of the admission giving' it the broad scope claimed for it. It is insisted that the words, “ stand proved,” necessarily carry with them the idea that every fact essential to a recovery by the plaintiff was intended to be admitted. The meaning of these words, as applied to the subject-matter of the admission, does not warrant this implication. The admission does not extend to the cause of action stated in certain counts of the petition, but refers in terms to “the
II. Nor do we think that defendant’s fifth instruction justifies the application of the rule announced in Sullivan v. Railroad (88 Mo. 169), by the want of' its qualification covering or excepting the case made on-the Davis account, which was presented to the jury in' the eleventh instruction of the plaintiff’s series. The-defendant’s instruction is general, and refers to the case- and the sixteen accounts in issue as a whole, while the one given with reference to the additional element present as to the Davis account, is special. It singles out the third count of the petition as standing, in the respect referred to, upon an exceptional ground. By bringing this exceptional ground, to the special attention of the jury, any omission of a qualification to the same effect from the defendant’s instruction in question was fully supplied. We do not think the Sullivan case should be extended to such a state of instructions as here presented. Even if the Sullivan case can be said to apply here, we think the instruction itself contains the very provision which the rule, in that case, would require to be inserted. The jury are told that the doctrine of the plaintiff’s instruction governs the Davis-account, and that they should find for the' plaintiff as to it, “even though they should further believe that Baylor had no interest in the hotel.” The other instructions indicate that the phrase, “interest in* the-hotel,” was used in this case as conveying the meaning* that the defendant was either a partner in the business of managing said hotel, or. was himself the proprietor, acting in the matter through Spotts as his agent.
III. There was no evidence upon which plaintiff was-entitled to recover under the rule that one who holds himself out as a partner is liable as such. That rule can be applied only when two elements concur: first,.
IV. While it is true, that in form, the account of Meyer & Kespohl was made out against the defendant, yet, in view of the fact that the evidence offered to support that account showed that it was so made out without the knowledge or consent of the defendant, and that he denied any connection with the goods charged for, promptly upon their arrival at Kirksville, the account must be regarded as occupying the same position as the others sued on, and as based on a sale to Spotts, in respect to the rule declared in the first instruction given for the defendant. The use of such terms as prima facie and the like in instructions to juries is not to be
There being no error materially affecting the merits of the case, the judgment is affirmed.
SEPARATE OPINION.
I non-concur in so much of the foregoing opinion as holds that there was no error in the action of the trial court respecting the stipulation of the defendant concerning the accounts of Heiny & Company, and Heiny & Hooper. It was not only an admission that the accounts were correct .as to the items and such formal matters, but it is more, that the accounts stand proved. Proved against whom ? Unquestionably against Baylor; for it says “ in the above cause.”
It is too narrow, in my view, to say that the purpose was merely to avoid the expense of the claimants going to Macon City to prove the items of the accounts. It must be borne in mind that the object of assigning the respective accounts to Hannah was to avoid multiplicity of suits by embracing them all in one action. The assignors continued to be the real parties in interest. As was well known by all concerned, the real controversy in this case was as to Baylor’s liability on these contracts of purchase and sale. Why, if the object was merely to save costs and trouble in going to court at Macon City, would Heiny et al. have stipulated only as to the correctness of the accounts, about which, as the sequel shows, there was really no controversy, and stay at home, leaving the real controversy, as to them,
If any inference is to be drawn from the smallness of these two particular accounts, it would rather be that, as they did not amount to much, to avoid litigating as to these, and to escape the force and effect of any special testimony by the Heinys, the defendant preferred, for the purpose of the trial herein, to recognize their claims as “proved.” But what is most conclusive to my mind against the theory of the majority opinion, that the stipulation applies only to the correctness of the items of the account, or, in other words, that the items therein were sold, as of the dates and at the prices named, and the like, is, that this was fully covered by the term, “ correct,” and that the further language can only apply to the real issue in the case — that they were “proved” against the defendant. This, I think, is the clear import of the stipulation.