Smith v. Cain

180 Mo. App. 457 | Mo. Ct. App. | 1914

ROBERTSON, P. J.

The plaintiff filed his account in the justice’s court against R. M. Cain & Co., upon which summons was issued* naming all of said defendants. The defendants appeared and filed an affidavit denying the partnership. A trial was had in the justice’s court, an appeal taken to the circuit court and a trial there before a jury resulted in a verdict and judgment for the defendants, from which the plaintiff, has appealed.

The plaintiff was engaged in the business of renting pumps, boilers and other machinery and he proved that the defendants, Cain and Blankenship, personally rented of him certain machinery, including a pump and boiler, for which they agreed to pay him so much per month and to return them to his place of business when they got through with them. During the time they were using the pump and boiler and while they were yet in the possession of the defendants, an option to purchase was given to a party by the defendants on the mine where the boiler and pump were located, which the party afterwards exercised and purchased the mine. The plaintiff claims that there was no arrangement made with his consent whereby he released these parties from the payment of the rent thereon. The defendants claim arrangements were made with the plaintiff whereby the machinery should be left with the party who had purchased the mine, that they should be relieved from any further payment of rent thereon, and that they thereupon settled and paid the plaintiff all that was then due him from them. This payment the plaintiff concedes but claims that he did not accept their surrender of the property to the party who had purchased their mine as a surrender to him under the lease and that he did not release them from further liability thereunder.

The principal error complained of by the plaintiff is as to the action of the trial court in refusing to admit any testimony of the partnership of defendants because there was no allegation in the statement filed that the defendants were partners.

The only testimony admitted by the court in behalf of the plaintiff to establish his claim against the defendants was the testimony as to what was said and done by the defendants Cain and Blankenship. The plaintiff testified that he had transacted the business with no one except Blankenship and Cain. However, during the course of the trial the plaintiff undertook to prove that the other defendants were partners in the enterprise where the pump and boiler were being used and that they were operating under the firm name of R. M. Cain & Co., in which name the contract was signed, but the court refused to admit the testimony on the ground that “You can’t prove a partnership and recover on the strength of partnership unless you plead it. You can’t do it in the justice court either without alleging it.” The plaintiff, however, did succeed in getting in testimony which tended to, if it did not conclusively, prove that the defendants were partners. Even the defendant who made the affidavit denying the partnership was on the stand and admitted .that he was a partner, although at the close of all of the testimony the court, evidently on the theory announced in the above ruling, instructed the jury under the pleadings and evidence to return a verdict for all of the defendants except Cain and Blankenship, and thereupon hypothetically submitted their liability to the jury-

It has long since been settled by numerous decisions of our appellate courts that in an action against several defendants it is not essential to allege a partnership in order to be entitled to offer testimony tending to prove it, for the reason that such question is a matter of evidence. [Gates v. Watson, 54 Mo. 585; Fellow v. Jernigan, 68 Mo. 434; Stix v. Matthews, 63 Mo. 371, 374; Alcorn v. Railroad, 108 Mo. 81, 92, 18 S. W. 188; Anstee v. Ober, 26 Mo. App. 665, 667; Lowe v. Electric Springs Co., 47 Mo. App. 426, 430.]

The trial judge was no doubt misled by the case of Jones v. Fuller, 38 Mo. 363, cited and relied upon here by the respondent to sustain the court’s ruling, but that case has been distinguished by the Oates case cited above, which evidently the trial judge did not see, and is readily distinguished from the case at bar on the ground that no one should presume that R. M. Cain & Co. was a corporation, since, where a corporation contains the name of individuals, it must further contain some word designating the business of the corporation. [Section 2978, Revised Statutes 1909.] The defendants also appeared in the case and, so far as the record discloses, voluntarily treated the action as one against them as partners.

It does not, however, follow that this case should be reversed and remanded for a new trial; because the plaintiff himself testified, as above noted, that all of the transactions involved in this case were had with Cain and Blankenship; hence, the liability must attach to the other defendants solely by reason of these transactions. The court did properly submit to the jury the question of the liability of Cain and Blankenship and the jury found that they were not liable. Therefore, it necessarily follows that the other defendants are not liable and no error was committed by excluding the question of their liability from the consideration of the jury. Had the plaintiff prevailed in this suit, then he would have had grounds for complaint of the court’s ruling. The jury having settled the questions of fact adversely to the plaintiff, we are powerless to disturb the judgment in the absence of' prejudicial error. Affirmed.

Farrington and Sturgis, JJ., concur.