112 Mo. App. 718 | Mo. Ct. App. | 1905
The plaintiff sued in a justice’s court on an account against defendants and recovered judgment, from which defendant appealed to the circuit court where judgment was again rendered against the latter from which he appealed to this court. The work and materials included in the account sued on were furnished upon the order of Walter S. Ham, who was shown not to be a member of the firm, although sued as such.
“The jury are instructed that they will take into consideration all the facts and circumstances in this case showing the acts and conduct of the firm of Ham & Ham, or of their agent shown to be such by the acknowledgment and ratification of the acts of Walter S. Ham and the ownership of this property or any part thereof on which the work charged was done, and if from all the facts you believe that the firm of Ham & Ham had the work done or acted in such a manner as to induce the agents of the plaintiff to believe that the work was being done for Ham & Ham, your verdict will be for plaintiff.” This instruction was objected to by defendant. It ought not to have been given, for the plain reason that it tells the jury Walter S. was defendant’s agent, and that the facts showed him to be such. Whether or not he was the agent of the firm of Ham & Ham was a question for the jury under the evidence. It is not necessary to cite authority on the question.
The plaintiff sued defendant and Walter S. as a partnership and recovered against one of them only. Defendant contends that a part of the account sued on, and for which plaintiff recovered, was on an individual in
For the error noted the cause is reversed and remanded.