A. Graf Distilling Co. v. Wilson

CourtCourt of Appeal of Missouri (US)
Citation156 S.W. 23,172 Mo. App. 612
PartiesA. GRAF DISTILLING CO. v. WILSON.
Decision Date08 April 1913

Appeal from Cape Girardeau Court of Common Pleas; Robert G. Ranney, Judge.

Action by the A. Graf Distilling Company against Joe T. Wilson. From a judgment for defendant, plaintiff appeals. Affirmed.

Davis & Hardesty, of Cape Girardeau, for appellant. Ely, Kelso & Miller, of Cape Girardeau, for respondent.

ALLEN, J.

This is an action by plaintiff corporation, appellant here, against one Joe T. Wilson, respondent in this court, seeking to hold the latter liable as a partner for an alleged partnership debt. It appears from the evidence that on or about June 12, 1907, one Joe Goldbaum launched a retail liquor business in the city of Cape Girardeau Wider the name of "Cape Liquor Company." That shortly prior thereto Goldbaum, desiring to enter into this business, and having no capital, induced the defendant Wilson and one John T. Sackmann to indorse notes for him to the amount of $1,200 upon which money was procured from banks in order to conduct and carry on the business. It was agreed between the defendant and Sackmann on the one hand and Goldbaum on the other that out of the profits of the business payments were to be made on these notes by Goldbaum as fast as money could be realized from the business therefor; and, after the notes had been paid, the net profits were to be divided equally between him, Sackmann, and the defendant. Goldbaum was to first pay the running expenses of the business, including $50 per month to himself. The business was conducted by Goldbaum under this arrangement until about September 3, 1907, at which time there was a further agreement between him, Sackmann, and the defendant, whereby it was agreed that if Goldbaum would pay off these notes, and pay all debts contracted in conducting the business, defendant and Sackmann would not be entitled to any profit. Thereafter Goldbaum continued to conduct the business at the same place and under the same name until he went into bankruptcy. On August 5, 1908, he was adjudged a bankrupt; and the assets of the "Cape Liquor Company" were sold, realizing something like $500. Sackmann was also adjudged a bankrupt, with no assets, prior to the institution of this suit. It appears that Sackmann and the defendant were each engaged in other business in the city of Cape Girardeau, and did not want their connection with the "Cape Liquor Company" or with Goldbaum known, whatever that connection was. They were not publicly known as having an interest in the business, their names were not used upon stationery of the concern, nor apparently otherwise in connection with the business. Plaintiff's position, however, is that they were partners, and liable as such for the partnership debts.

The suit is for a liquor bill, for whiskys sold to the "Cape Liquor Company" upon the order of Goldbaum, who was conducting the business. It appears that plaintiff's salesman, one Robert Cone, obtained the order from Goldbaum on June 5, 1907, shortly prior to the time that the "Cape Liquor Company" opened its place of business. It is claimed by Cone that Goldbaum was introduced to him by Sackmann upon the occasion of his taking this first order, but it is not contended that defendant was then present, or that he had anything to do with it. Thereafter, from time to time, further quantities of liquor were shipped to the "Cape, Liquor Company" by plaintiff on Goldbaum's order up to and including January 16, 1908, at which time the total thereof furnished by plaintiff amounted to $1,130.61. Various cash payments are credited on the account, and credit is given for certain liquors returned, the total credits being $757.55, leaving a balance due of $373.06, to recover which balance this suit is brought. The total amount credited upon the account is less by $92.36 than the total invoice price of liquors sold the Cape Liquor Company by plaintiff prior to September 3, 1907, at which date plaintiff claims that the defendant and Sackmann undertook to withdraw from the alleged partnership by the agreement of that date heretofore mentioned, and of which plaintiff had no notice. The plaintiff called the defendant Sackmann, and Goldbaum as witnesses in its behalf, as well as Adolph Graf, president of plaintiff corporation, and Robert Cone, plaintiff's salesman. It appears from the evidence that there was perhaps an original written agreement between Goldbaum, Sackmann, and the defendant, but, if so, it was not produced at the trial, neither was the agreement of September 3, 1907. It was attempted by plaintiff to have these papers produced. It is not altogether clear that the first existed, and it was claimed that none of the three alleged partners had any copy of the last agreement. Goldbaum testified that he was unable to find his copy of it, Sackmann testified that he had destroyed his copy, and Wilson testified that he did not know what had become of his, if he ever had one.

We shall not undertake to set out the evidence in detail by which the plaintiff attempted to show that the defendant had allowed himself to be held out as a partner in the business. There was very little testimony to this effect beyond that of A. Graf, president of plaintiff corporation, and Robert Cone, plaintiff's salesman, much of which was incompetent, at least for this purpose. So far as the evidence tending to show an actual partnership between the three, it consisted mainly of the showing made, and which defendant admitted in testifying, that the defendant and Sackmann had indorsed Goldbaum's notes, and that they were to receive each one-third of the net profits, after the notes and running expenses had been paid.

The defendant offered no testimony and the cause was submitted to the jury upon six instructions given on behalf of the plaintiff and two on behalf of the defendant. One instruction requested by plaintiff was refused by the court. There was a verdict for the defendant, and after an unsuccessful motion for a new trial, and preserving exception to the overruling of said motion, the plaintiff has duly appealed to this court. We may say at the outset that the evidence fell short of making out a case in which the defendant should be held liable as a partner by estoppel. The evidence fails to show that he permitted himself to be held out as a partner. On the contrary, it appears that the defendant's connection with the enterprise and with Goldbaum was kept secret, and defendant in no way took part in the business or permitted his name to be used in any way in connection therewith. The testimony elicited by plaintiff for the purpose of showing that defendant had been held out as a partner utterly failed to make a case against defendant on that ground.

Learned counsel for appellant, however, earnestly insist that the evidence as a whole shows beyond question that a partnership actually existed between the defendant, Sackmann, and Goldbaum, and say that the court erred in not so declaring. Upon the question that the court should have so declared as a matter of law, it might be sufficient to say that appellant did not take this position at the trial, but, on the contrary, asked instructions submitting this issue to the jury.

A party is bound by the position which he voluntarily assumes at the trial; and, where he treats an issue as being one for the jury, he cannot afterwards complain that such issue is so submitted, even though it be one that might have been passed upon before the court as a matter of law. Ellis v. Harrison, 104 Mo. 270, 16 S. W. 198; Berkson v. Railway Co., 144 Mo. 211, 45 S. W. 1119; Dunlap v. Griffith, 146 Mo. 283, 47 S. W. 917; 3 Cyc. 249; Vromania Apartments Co. v. Goodman, 145 Mo. App. 653, 123 S. W. 543; Dahmer v. Railway, 136 Mo. App. 443, 118 S. W. 496; Cady v. Coates, 101 Mo. App. 147, 74 S. W. 424. And the evidence was not such as to justify...

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