78 Mo. App. 603 | Mo. Ct. App. | 1899
The petition is in thirteen counts, in all of which it is alleged that the defendant was a partner in a mining copartnership doing business under the firm name of the Charles H. Gage Mining & Smelting Company. The first count is for Avork and labor performed by plaintiff for the firm; each of the other twelve is for work and labor and for team work done and performed by the firm by twelve different persons, all of Avhom assigned their accounts to the plaintiff for collection only. Ingram’s answer was a general denial, and a denial under oath that he was a partner of the Charles H. Gage Mining & Smelting Company. A trial Avas had by a jury, resulting in a verdict for plaintiff on the thirteen counts of the petition. A motion for new trial proved unavailing, and defendant duly appealed.
The evidence proves, and it stands practically admitted, that the several accounts sued for Avere justly due from the Charles LI. Gage Mining & Smelting Company. The controverted fact was whether or not Ingram was a member of the firm. lie swore in his answer and on the stand as a witness that he was not and never had been. It appears from the evidence that Charles LL Gage and William J. Ennentrout in the beginning undertook to develop and operate a mine in Greene county; that they borrowed $1,500 of Ingram in May, 1897, at which time or shortly thereafter, they agreed with Ingram to form a corporation, and to give Ingram one fifth of the shares of stock. The corporation was neArer formed, but an office was opened in the city of Springfield, Missouri, and supplied with stationery, etc.; letterheads were printed and used, whereon Gage Avas designated, as president and general manager, and Ingram as assistant superintendent and solicitor. Ingram testified that he protested against the use of these letterheads, but he did nothing further to prevent their use and circulation.
Wo find no erroneous ruling in the admission of testimony; the books of the company were identified by the bookkeeper, and the day book kept in the manner he testified it was kept- — that is, that it was made up from the memorandum time books kept by the bosses of the work, was a book of original entries. Missouri E. L. & Power Company v. Carmody, 72 Mo. App. 535.
The plaintiff was authorized to sue in his own name on the assigned accounts. Home v. Hudson, 99 Mo. 102; Hayslen v. Dawson, 28 Mo. App. 531.
Defendant complains of instructions given for plaintiff. The first instruction given for plaintiff was on the theory of an actual partnership. The second on the theory of an association together to form a corporation, the abortiveness of the corporation, and that from these a liability
[Note. — The case of Catherine Dooley, respondent, v. S. N. Ingram, appellant. No. 7179, is affirmed by the St. Louis Court of Appeals on February 7, 1899, for the reasons set forth in the following opinion, the issues being substantially the same» Reporter.]