Pabst Brewing Co. v. Smith

59 Mo. App. 476 | Mo. Ct. App. | 1894

Gill, J.

This action was brought to charge the defendants Smith, Asper and Mellwrath with the balance due on account of beer alleged to have been sold by Phillip Best Brewing Company to defendant Smith during the two years prior to March 12, 1889, The attempt is to charge defendants Asper and Mellwrath as sureties for said Smith.

It is alleged in the petition that the Pabst Brewing Company is the successor to the rights and assets of the Best Brewing Company by virtue of the reorganization or amendment of the articles of association of said Best Brewing Company alleged to have taken place March 12, 1889, and that by reason thereof, the two corporations are. one and the same. The answer of defendants Asper and Mellwrath properly put in issue this alleged consolidation or amendment of articles of association, and in effect denied that the Pabst Brewing Company liad any interest in the subject matter of the litigation. Other defenses were also interposed, but for a disposition of this appeal, this is all that need be mentioned.

The cause was submitted to the court without a jury, resulting in a judgment for plaintiff as against defendant, Smith, but in favor of defendants Asper and Mcllwrath, and therefrom plaintiff has appealed.

1. A consideration of one out of a number of points in this case calls for an affirmance of the judgment.

Before the plaintiff corporation could be allowed to recover it was clearly necessary for it to prove, according to the allegations of its petition, that it had become legally entitled to the assets of the Best Brewing Company. It was alleged that the articles of association of said Best Brewing Company had been so amended that it had passed into, or become consolidated with, the plaintiff Pabst Brewing Company—that they were in fact one and the same corporation. On the pleadings, the plaintiff was as to defendants Asper and Mcll wrath, put to proof of these allegations.

In order to establish these, plaintiff offered a paper purporting to be a copy of the “Amendments to the Articles of Association of the Phillip Best Brewing Company” pretending to have been certified to by the secretary of state of Wisconsin where such records were kept. The court sustained an objection to the introduction of this pretended copy of a record because not attested by the keeper of said record and his seal of office.

Now, in the absence of a contrary showing, we must assume that the paper offered was, as clearly found by the court, unaccompanied by the seal of office of the Wisconsin officer; and this being so then the court properly excluded the paper. R. S. 1889, sec. 4844. The trial judge, then, committed no error in the matter. And, since there was no other competent evidence of snch consolidation or amendment of articles of association, that material allegation of the petition was unproved and the plaintiff was not entitled to recover as to the defendants, Asper and Mcllwrath.

2. Counsel can hardly be serious in the suggestion that plaintiff was erroneously denied the privilege of a nonsuit. The plaintiff’s abstract of record is a complete answer to that complaint. The cause was tried before the court on January 14,1893, when the court took the case under advisement. As to what further occurred, we quote literally from the record:

“Again, on January 20, the cause coming up and all parties being present, the judge asked the parties if they were ready for the decision of the case, and there being no objections he proceeded to review the case, passed upon the evidence offered during the trial, indicated what was admitted and what was rejected, and that the finding would be for defendants, Asper and Mcllwrath. Whereupon the plaintiff’s counsel asked time to consider whether they would take nonsuit or not, and the court gave them until the twenty-second day of January to consider. The cause again came up on the twenty-second day of January, the court having previously passed upon all the plaintiff’s instructions, and marked them given and refused, except those numbered 5, 6, 7, and 8, but had notified plaintiff’s counsel, S. J. Miller, that those not marked given were refused. The judge asked the parties again if they were ready for a decision of the case, and, plaintiff failing to take a nonsuit, directed the clerk to enter judgment for plaintiff against defendant Smith, and in favor of defendants Asper and Mcllwrath. Wherefore plaintiff’s counsel asked leave to take a nonsuit, which was denied and judgment was entered, to which action of the court, in not allowing a nonsuit, plaintiff at the time .excepted.”

A mere reference to the statute prescribing time for taking nonsuit (R. S. 1889, sec. 2084) furnishes every argument needed to sustain the trial court in this refusal. See, also, Mayer v. Old, 51 Mo. App. 215.

The judgment of the lower court will be affirmed.

All concur.