Vanhoosier v. Dunlap, 117 Mo. App. 529

Vanhoosier v. Dunlap

117 Mo. App. 529 | Mo. Ct. App. | 1906

ELLISON, J.

This is an action on a contract to saw timber into lumber, wherein it is charged that defendant by selling the timber prevented plaintiffs from sawing and thereby deprived them of the net profits in said work. The judgment in the trial court was for the plaintiffs.

The contract to saw the timber was originally made with one Ragan, but plaintiffs as a partnership (as they allege) were substituted in Ragan’s place. Defendant *531contends that the partnership was not so substituted; but that Vanhoosier, one of the members of the partnership was substituted. The answer was a general denial and there was no denial of the partnership under oath. The trial court ruled that the effect of the answer not being under oath, was not only to admit the partnership of plaintiff’s but also that defendant’s contract was with the partnership. We think the ruling erroneous, and also in refusing an instruction on the same subject. Notwithstanding the failure to deny the partnership under oath admitted the partnership, it did not admit the contract as alleged in the petition. Notwithstanding Vanhoosier was a member of the plaintiff partnership, there was nothing to hinder his making an individual contract. This was a material matter for defendant, since in alleging a contract with a partnership there can be no recovery by an individual member of the firm on an individual contract. [Bagnell Timber Co. v. Railway, 180 Mo. 420, 463.]

II. Objection is made to the form of the motion for new trial. It reads that, “Comes now defendant in the above-entitled cause and moves the court to grant a new trial thereof for the following reasons, towit.” The point made is that it does not ask that the verdict be set aside. The objection is not well taken.

We think exceptions were properly saved to the ruling of the court on the points herein considered. The' judgment is reversed and cause remanded.

All concur.