Stone v. Wendover

• Citation: 2 Mo.App. 247
• Parties: JOHN D. STONE, Respondent, v. J. K. WENDOVER, Administrator of WILLIAM F. STACEY, Appellant.
• Decision Date: 16 May 1876
• Court: Court of Appeal of Missouri (US)

2 Mo.App. 247

JOHN D. STONE, Respondent,

v.J. K. WENDOVER, Administrator of WILLIAM F. STACEY, Appellant.

St. Louis Court of Appeals, Missouri.

May 16, 1876.

1. In an action on covenant it is sufficient if the words used in the petition, either in their expressed intent or by necessary implication, show that a breach has been committed.

2. The rule of evidence that a condition of things once shown to exist will be presumed to continue until the contrary appear may be equally applicable

to a pleading, where the fact stated is in its nature continuous, and no limitation of time is suggested. In any event, no objection of the contrary can be entertained after a verdict which could not have been rendered unless the fact of continuance had been sufficiently shown.

3. In a petition charging different violations of the same contract, in separate counts, it is unnecessary to repeat, in every count, the terms of the contract which are common to all, by way of inducement.

4. A suit by a partner against his copartner, upon a claim not founded on the plaintiff's interest in the partnership assets, but arising from a direct violation of the articles of copartnership, need not be delayed for the taking of an account of the partnership affairs.

5. A partner satisfying a judgment against himself upon an indorsement made by his copartner in violation of the articles, is entitled to reimbursement for the costs paid in such satisfaction, as well as for the amount of the judgment otherwise.

6. When there are two or more counts or demands in a petition, and the verdict is for a gross sum, the objection thereto must be made in the trial court; otherwise, it will not be noticed on appeal or writ of error.

APPEAL from St. Louis Circuit Court.

Affirmed.

Dryden & Dryden, for appellant, cited: 1 Greenl. on Ev. (7th ed.) 52, sec. 41; Wag. Stat. 1012, sec. 1; 1 Chitty's Pl. 413; Childs v. The Bank, 17 Mo. 213; Mooney v. Kennett, 19 Mo. 551; Clark v. Hannibal & St. Jo. R. R. Co., 36 Mo. 202; Brownell v. Pacific R. R. Co., 47 Mo. 239; City of St. Louis to use v. Allen, 53 Mo. 44.

Wm. Patrick, C. G. Drummond, and Krum & Madill, for respondent, cited: Ahern v. Collins, 30 Mo. 145; Schwart v. Naylor, 2 Duer, 678; Richardson v. Farmer, 36 Mo. 35; Jones v. Louderman, 39 Mo. 287; Kercheval v. King, 44 Mo. 401; Hay v. Short, 49 Mo. 139; Hapgood v. McKoon, 49 Mo. 77; Poe v. Dornec, 48 Mo. 441; 8 Ohio St. 293; Rowland v. Phalon, 1 Bosw. 43; Fugate v. Glasscock, 7 Mo. 577; Coll. on Part., sec. 245; Johnson v. Armdall, 34 Mo. 339; Dillard v. Noe, 3 Ark. 449; Deery v. Cray, 5 Wall. 796; City of Alleghany v. Nelson, 25 Penn. 332; Byrd v. Blusing, 11 Ohio St. 362; Phillips v. Jordan, 3 Stew. 38; Nelson v. Brownlee, 24 Ark. 587; Anderson v. Cople, 26 Ind. 329; Fankbonner v. Fankbonner, 20 Ind. 62; Thorn v. Watson, 10 Ill. 26; Smith v. Erer, 21 Ala. 38; Hathaway v. Jones, 21 Ark. 109; Sheperd v. Bank of Missouri, 15 Mo. 141; Payne v. Collier, 6 Mo. 321; Ramsey v. Gross, 9 Gill, 56; Buckner v. Bush, 1 Duv. 394; Currens v. Radcliff, 9 Iowa, 309; Granger v. Buck, 3 Iowa, 570.

LEWIS, J., delivered the opinion of the court.

The petition states that, in January, 1859, plaintiff and defendant's intestate, William F. Stacey, formed a copartnership, as carpenters and builders, under the firm style of Stacey & Stone; that, in the articles of copartnership, which are filed with the petition, it is stipulated that “neither party thereto should, without the consent of the other, during the continuance of the partnership, use or indorse the copartnership name of Stacey & Stone on any note or bill for the accommodation of any third party or parties;” that, in September, 1869, said Stacey, without the knowledge or consent of plaintiff, indorsed the firm name on a note, for the accommodation of Ladd & Miller, in the sum of $1,400; that the Western Savings Bank, being the holder of said note, and having had the same duly protested for non-payment at maturity, recovered judgment thereupon against plaintiff, in October, 1871, so that, on October 20, 1871, plaintiff was compelled by execution to pay the sum of $1,785.05, including interest and costs of suit, to satisfy said judgment. Plaintiff therefore prays judgment for the sum so paid, with interest and costs. For another cause of action the petition states that said Stacey, in February, 1870, without the knowledge or consent of plaintiff, indorsed the firm name of Stacey & Stone on a note, for the accommodation of Ladd & Miller, in the sum of $450; that protest and judgment against plaintiff followed, as in the former case, whereupon plaintiff was in like manner compelled to pay the sum of $542.50, including interest and costs of suit. Judgment is prayed for the sum so paid, with interest and costs. The answer is a general denial. Upon trial before the court, sitting as a jury, there was a general finding of damages for plaintiff in the sum of $2,429.84, and judgment accordingly. Defendant filed unavailing motions for new trial and in arrest of judgment. All the points which will be herein considered, with a single exception, were properly saved by defendant in the various stages of the proceeding.

Defendant contends that the petition leaves it uncertain whether the action is based on a breach of the copartnership agreement or on an assumed violation of the general obligations of a partner, claiming that there is no explicit declaration of a breach of covenant. The weight of this objection is not apparent. It is settled that where the words in a petition, either in their expressed intent or by necessary implication, show that a breach has been committed, it is sufficient for an action upon covenant. Schenck v. Naylor, 2 Duer, 678.

Defendant further complains of the petition because it does not state that Stacey's acts of indorsement occurred during the continuance of the partnership. The partnership is stated to have commenced in 1859, about ten years prior to those indorsements. The rule that a condition of things once shown to exist will be presumed to continue until the...