79 Mo. 293 | Mo. | 1883
The appellant was a member of the firm of Crow, Kendrick & Co., and respondents sped him in the circuit court of Franklin county on a lost note alleged to have been made by Crow, Kendrick & Co. to respondents, on which $24 had been paid. Appellant answered denying that the firm of Crow, Kendrick & Co. executed any such note or made any payment on it.
Respondents offered the deposition of one A. K. Root, one of the firm of Hayner & Co., who testified in substance that respondents sent Crow, Kendrick & Co. a reaper for sale, who, after some time,, reported that they had sold it to J. F. Kendrick, one of the firm of Crow, Kendrick & Co., and sent a note dated September 6th, 1873, executed by J. F. Kendrick to J. E. Hayner & Co. for $185, which was signed on the back by Crow, Kendrick & Co.; that $24 was paid on it about August 22nd, 1874; that respondents delivered this note to the express agent for collection .and witness has not seen the note since, and it was not in the possession of respondents. The appellant objected to this deposition because it tended to prove a different note to the one sued on; that it showed a note made by Kendrick and indorsed by Crow, Kendrick & Co., and not a note made by Crow, Kendrick & Co., as sued on. The court sustained the objection as to that part of the deposition showing a different note, and overruled it as to that part showing the loss or destruction; which, taken with subsequent testimony, proved to be material and competent. Respondents then offered the depositions of "Waters and Anderson, agents of the express company, who testified that they had searched for and could not find the note; respondents also offered in evidence the receipt of the express company for said note, as follows: “Adams Express Company, St. Louis Missouri, May 23rd, 1874. $185. Received from J. E. Hayner & Co., for collection, a note on Crow,
Appellant offered evidence of Breckenridge that Kendrick did all the business of the firm of Crow, Kendrick & Co., and the other partners lived off some distance. Appellant testified in his own behalf that he knew nothing of any such note and had not authorized the payment on it; that it was given by Kendrick in the firm name for his own debt, outside of the legitimate purposes of the partnership; that Kendrick did most of the buying of the firm, and when he wanted goods generally took and charged them to himself.
This was the substance of the evidence in the case, and the issues in the cause were: 1st, Whether or not the firm of Crow, Kendrick & Co. executed the alleged note; 2nd, Whether or not the firm of Crow, Kendrick & Co. made any payment on the alleged note; and 3rd Whether or not the note was lost or destroyed.
The nearest approach to an error by the court seems to have been the exclusion of that part of Root’s deposition in which he described a note different from the one sued on; for taken in connection with the rest of his deposition and with the other evidence in the case the excluded clause would have been competent to go to the jury as a circumstance. The whole of Root’s deposition taken together
If the appellant reposed confidence in his partner, respondents must not be made to suffer thereby. Where one of two innocent persons must suffer by the act of a third party, he shall suffer who has been the cause or occasion of the confidence and credit reposed in such third person. Story on Partnership, § 108; Depew v. Robards, 17 Mo. 580.
The judgment is affirmed,
A motion for rehearing toas overruled.