*1 1922. MARCH TERM, Brewing Assn. Schafer. St. Louis v. Respondent, ASSOCIATION, BREWING

ST. LOUIS SCHAFER, FRED SCHAFER, SR., JR., FRED Appellants. and R. SCHAFER, Appeals. Opinion June of Filed 1922. St. Louis Court Impeachment: Membership: of Partners: Declarations 1. WITNESSES: Admissibility. in- upon partnership account Evidence: In a suit a partner was a of as whether one the defendants volving issue to testimony account, of other as to declarations and liable on though firm, was member of the partners a that such defendant defendant, proper competent absence of such impeach partners showing as witnesses to such that upon ma- contradictory occasion statements on another partnership, in view of other to whether was a terial issue there as partner. testimony a that such defendant Impeachment: Testimony: Failure to Limit 2. TRIAL PRACTICE: Request upon Instruction. In Not Error of a Absence a suit involving issue as whether partnership to account one partnership part- member of the which other defendants was a partner, ners that such defendant a testi- had testified partners mony such such defendant to declarations as impeach partners as partner to such other admitted was a such witnesses, the failure the court to limit to file not error held purpose of which offered the absence of part for such an request of defendants instruction on ;it. give to part court refusal Membership: Admissipns: Admissible PARTNERSHIPS: Decla- 3. as Estoppel. Against In upon partnership Interest: suit rations involving the issue as to whether one of the account partnership, or member of the was a admissions indicating he was of such party held as he was a to the suit his him, were admissible interests and were bind estop- a partnership well as an actual pel. Conduct: -: -: Acts Evidence: Admissible

4. Estab- Partnership. involving In a suit account lish one of whether was member of the defendants issue’as Brewing Assn. v. St. Louis Schafer. proof and conduet of such acts defendant competent. establish Holding Estoppel: -: Out -: Instructions: as Partners: *2 Proper. involving upon Instruction partnership In a a suit account the issue to whether one was member of the as defendants a

firm, if actually an instruction that even not such defendant was partner, if “by nevertheless he could be held liable as such conduct, plaintiff or himself to the acts held defendants, acts, of said conduct or was a induced believe that he of such the the other defendants” reason belief and “that goods” etc., the held gave credit sold jury required necessary such instruction to find all the ele- by estoppel. partnership ments of Offering -: -: Converse -: -: -: Instruc- 6. requested the court tion: Effect. Where the defendants converse of instruction an instruction which is the an their behalf complain. by them, cannot criticised Jury. for In suit on Question 7. -: -: Evidence: whether involving the issue as one of the partnership account firm, held was a member defendants jury. for to make the issue one Supported Verdicts: PRACTICE: APPELLATE Substantial 8. Appeal. Evidence: Conclusive on Where the evidence was sufficient jury, and, jury one- for make the issue of question defendant, having is decided that (cid:127) appellate province interfere. court County.— Appeal Court Jefferson from Circuit earing, Judge. D Hon. E. M.

Affirmed. ap & Kleinschmidt and Miller for

Chas. J. White pellant. respondent.

Clyde Terry P. for Williams S. an account BIGGS, sues beer C. Plaintiff sold to Fred and Roland TERM, MARCH y. Assn. Scliafer. been, alleged partners. have Follow- ing judgment against there verdict of a all in the sum from' which $3603.32, defend- appeals. ant Fred Schafer, Sr., alone touching questions The main issue the case both of fact and law was whether Sr., was a partner and liable on the account. complained of

Errors are, admission of evi- giving jury, dence, of instructions to the and a supported by claim made that is verdict testimony. necessary ques-

The material facts to rule on the presented tions are these:

Plaintiff was in manufacturing beer city of St. Louis. father of other two defendants, and Roland years many prior year Schafer, .for *3 been had engaged in the beer city and soda water business in the of Festus, Missouri, had been a and customer of the plaintiff, property had accumulated had and established plaintiff company. a line credit with the In 1908 disposed Fred including Schafer, Sr., business, machinery and real to D. A. estate, Dees, D. Sr., and A. Dees, conducted Jr., business until December During 30, they handling all of this time had been product plaintiff company. On the date last stated the two Fred Schafers, Schafer, Sr., and Fred A. Schafer, Jr., with D. Sr., and D. A. Dees, Dees, Jr., plaintiff company city went to the officeof the in St. where a written Louis, contract entered into be- whereby tween D. A. Dees and Fred Schafer, Jr., in consideration of $3,000 $3,000 notes, cash which and were owned Fred and executed Schafer, Sr., Dees being and wife, returned to Dees Dees, said trans- ferred business Fred included occupied by also the real then estate Dees and which formerly occupied by had been Fred conducting the business. Afterwards this real estate conveyed by Fred Schafer, Sr., Dees to who held 210 MISSOURI Schafer. Brewing Assn. v. conveyed subsequently by it to property deed and

another. prove time that at the evidence tends

Plaintiff’s' in the Sr., entered into Fred Schafer, the contract was employees presence and Jr., Sr., of Dees, manager company, Mr. Schaus, stated to (Fred Sr.) plaintiff corporation, Schafer, that he buying Dees, Mr. and that the business from back Jr., be run name of Fred Schafer, business would reason that Fred Schafer, that done this among reputation good the saloon men, had Jr., many good Schafer, that had he, Sr., Fred that the business done reason would enemies, and for that Fred Schafer, but name of responsible. in the business and was Sr., was with his son at that The evidence tended show Festus to be sent to ordered beer same time shipped that said Jr.; to Fred prop- buy the would Sr., erty Dees, Jr., stated he in the name of Fred back and run Schafer, Jr. from to show further tended

January listed both ordered beer Schafers paid they both sums of the account and that on, sued having money visited the account, Schafer, Sr., on the pay- occasions on several office plain- ments that while ; beer sent to and told the Festus, ordered of- tiff’s office plaintiff company going ficers of the not' let and that must his son Fred, Jr., California *4 (Fred gone, he as he run of beer while was Schafer, Sr.), responsible. was

It further shown evidence that were Roland Schafer, and Schafer without means, plaintiff on the account books while com- pany in of Fred was carried name prove Brothers, Schafer tended request that this done at was Fred Schafer, Sr., plaintiff company and that would not have extended

MARCH TERM, St. Louis except that Fred

credit to the fact represented that he interested was responsible business partnership. for the debts and would There was further evidence on behalf of 1911, which December tended show after interest defendant Fred took considerable way looking in in after its the business customers place selling- them that he was beer; around constantly, looking business after the deliveries also was daily which to their beer, various were gave customers; that and directions to he orders the em- ployees, property, rent from collected and also col- lected the advice to firm’s their cus- accounts, tomers were saloon business reference conducting the manner of their business.

There was evidence Mr. Dees, from Sr., who after December conducted 1911, and handled the a saloon business at Fes- product, tus, Missouri, defendant’s him Schafer, Sr., had stated to that the boys; run for himself and the that the reason it run the name of Fred Schafer, Jr., was because could control the inasmuch as trade, Fred Schafer, Sr., obtained the ill ofwill the customers and did not boys like him. partners, that he Further, and the which statement Fred Sr., occasions. various

Countervailing testimony on behalf of the defend- ants indicated that Fred had no Sr., interest exclusively and that it business, owned and con- ducted the name of Fred Schafer, Jr., and Schafer Brothers. testimony. Upon As to the admission of the trial deposition offered in evidence the of D. A.

Dees, Jr., the witness testified as of Fred Jr., and to the effect that Fred Schafer, Sr., was their in the business. when first admitted pre- court, inasmuch *5 Brewing Louis St. intro- no evidence had been there at the and time, sent part- the showing the existence the

duced Schafer, nership. Subsequently and Roland Schafer and the defendants behalf of were witnesses Jr., testimony no had Sr., Schafer, to the effect partner. not a business, in the interest ques not proper laying foundation, which After again de offered plaintiff, rebuttal, tioned, statements position contrary which contained Jr., A. Dees, D. given testimony their with inconsistent to and Roland trial, to effect which was made statements had Schafer, Jr., and Fred Schafer partner. This awas that Fred prov purpose of for the not in rebuttal was so impeachment ing partnership, matter but as a credibility Roland witnesses Schafer affect complained of as error. This is Jr. partner one made such declarations Whether present admissible in the of another absence partnership, tending need to establish a case as evidence it not offered us inasmuch as was not be here ruled competent purpose. think for that We impeaching purpose witnesses Roland for it related to Schafer, Jr., inasmuch as Schafer concerning trial, material the issue on a fact though testified. Even conceded witnesses had of Roland and Fred that the statements Sr., the effect that their father Fred competent in the business being the first instance to establish presence Schafer, of Fred still where, here, and Fred upon the stand 'and denied that their father Fred any interest business or competent it was therein, impeach showing the said witnesses contradictory on another oc- statements the material issue as there was casion whether partnership. should have been, TERM,

MARCH Assn. Seliafer. purpose under limited to circumstances, course *6 doubtless it for which was have and the court offered, would given effect had an instruction to the to that requested it. was not This done, the the part give absence of the refusal on the court it not of error. an instruction could be convicted Railway Spohn the In case of v. Missouri Pacific Company, l. c. 14 101 it said: Mo. S. 880,W. agent usually

“Declarations an are inadmissible principal original evidence when after the event as mere of it. Nor narratives can such declarations be made evidence of a because mere denial of But where them. such statements or re- concerning late to facts material issue trial, agent may which the has testified, be contradicted any of them, the same as the witness, having introducing foundation laid been first for ’’ them.

Again in the case of Gordon 222 Railroad, Mo. Supreme says: 516, l. 531, c. 121 S. the 80,W. Court “Defendant also claims that the court erred admission of the statement made C. H. Manker, the yard Mary Pangle, injured J. mother foreman, the of injury about an man, hour after the occurred. With injury reference to the she son, her asked Manker happened, ‘Harry it how and he said, took hold of that old loose of handrail fell. caboose, and have I been get trying put shops them to that caboose in for guess they put appears month, and I will in it now.’ It testimony from the record that' this purpose proving negligence for chief, or of on the part company, purpose of the railroad but for sole contradicting witness Manker aon material matter upon which he testified for the defendant.

“It is well settled that the statements or admissions employee railway company of an aof with reference past speak event, which he not authorized to employer, for his not admissible evidence, as not part being Depot 'gestae. [Koenig of the res v. Union APPEAL REPORTS, Browing Company, cited.] Railway Mo. authorities object application no where here, rule has But that impeachment the witness about an that defendant testified Manker had hand- he examined after hour and a half accident good condi- that he them found caboose, on this rails shaky. testi- This not loose or were tion and good prove mony handrails tended to the time accident, condition at purpose.” no other offered for course, present of Dees case, So while with reference to father Fred that their to the effect may have was a purpose of competent for the instance in the first

been *7 part Fred establihing -on the a purpose proper still contradicting Schafer, and Roland case testified they became witnesses when the effect that question involved, upon the material partner in Schafer, Sr., was father their no error in committed think the Court business. We admitting under the circumstances. admitting Complaint of the court is made on account or of Fred declarations admissions evidence partner indicated that Schafer, Sr., Jr., It admitted Fred the business. firm, members of the were part- question only was whether regard. in this error committed ner. No party suit, Schafer, Sr., was against bind admissible to him and were his interest as well evidence of an actual [Huyssen estoppel. partnership by v. Lawson et as a App. 129 Mo. 31 Warde, Bissell v. 82; Mo. S. al., page Partnership, Rowley 1238.] sec. 928; W. Rowley rule Mr. states the thus: alleged person against part- by

“In third an action liability their . to establish ners . . it is sufficient MARCH TERM, St. Louis by alleged part-

to show the admissions of snch fact public have held themselves out to the ners, or proof may by as snch. The is that snch rule be parol. generally by It is actions third held persons persons alleged partners, to be may parol snch be established evidence appears even where it from the evidence on trial agreement of the case that there is a written between parties partnership.” toas may Proof of and conduct also acts [Row- establish a done case. as was this ley, 887.] sec. predicated upon

toAs the instructions. Error giving instruction as follows: though you “The court instructs the that even may believe and find from the evidence that at the time purchase goods described actually the defendant Fred Schafer, Sr., was partner of defendant Fred and R. you further

nevertheless, if find and believe from the evidence that defendant Fred Schafer, Sr., his con- or acts duct, himself held of said other defendants, such acts, conduct or declarations induced to believe that said defendant, Fred a you and if defendants, shall further believe that plaintiff reason of such belief, the credit and goods sold the mentioned then the de- evidence, *8 is fendant, liable as a under the cause of for.” action sued approved

This form of by instruction this court App. in Schultz v. 69 Mo. Steele, in a 614, 628, case where establishing the not by estoppel strong present By as in the reading case. a fair jury required instruction to find all the necessary partnership by of a estoppel, elements namely, (1) by reason of the acts, conduct and declarations plaintiff, plaintiff defendant which were known to be- partner, (2) lieved that he was a acted Assn. v. Scliafer. by ex- thereafter thereof such belief and reason requires the firm. The instruction tended jury credit by holding done de- that the to find act out plaintiff; that such hold- fendant ing thereby he was a out induced to believe partner; plaintiff gave and that reason of such belief goods. to the firm them the Under the credit and sold necessarily holding instruction the done before given. the credit requested the Court

their behalf No. instruction which is converse of the instruction criticized and for them, this reason permitted complain. defendants should not be [Baker McMurry Company, Contracting (Mo.) 223 S. 4-5, W. 49.] l. c. objection

We have examined the defendants’ to the pertained ques- third instruction, and did damages plain- tion of authorize a verdict for complaints against We think tiff. the instruction are without substantial m'erit. point against judgment

The other is supported effect that the verdict was not agree. point evidence. To this we do not This theory doubtless that the declarations of against Schafer, Sr., were not admissible him to partnership. establish the Plaintiff’s evidence in. refer- ence to Fred ’s, acts, Sr. conduct and admissions clearly prima sufficient to only facie establish not an actual but also estoppei. They made the issue of jury, one for the jury having question decided that the defend- province ant it is not our to interfere. justifying

No error appearing, reversal it is recom- judgment mended that the be affirmed. PER foregoing opinion CURIAM:—The of Btggs, adopted opinion

C., judgment court. The accordingly J., of the circuit court is affirmed. P. Allen, and Daues, JJ., Becker concur.