St. Louis Brewing Association v. Schafer
| Citation | 242 S.W. 692,210 Mo.App. 213 |
| Parties | ST. LOUIS BREWING ASSOCIATION, Respondent, v. FRED SCHAFER, SR., FRED SCHAFER, JR., and R. SCHAFER, Appellants |
| Decision Date | 06 June 1922 |
| Court | Court of Appeal of Missouri (US) |
Appeal from the Circuit Court of Jefferson County.--Hon. E. M Dearing, Judge.
AFFIRMED.
Judgment affirmed.
Chas J. White and Miller & Kleinschmidt for appellant.
Clyde Williams and P. S. Terry for respondent.
--Plaintiff sues upon an account for beer sold to Fred Schafer, Sr., Fred Schafer, Jr., and Roland Schafer, who are alleged to have been partners. Following a verdict of a jury there was a judgment against all defendants in the sum of $ 3603.32, from which defendant Fred Schafer, Sr., alone appeals.
The main issue in the case touching both questions of fact and law was whether Fred Schafer, Sr., was a partner and liable on the account.
Errors complained of are, in the admission of evidence, in the giving of instructions to the jury, and a claim is made that the verdict is not supported by the testimony.
The material facts necessary to rule on the questions presented are these:
Plaintiff was in the business of manufacturing beer in the city of St. Louis. Fred Schafer, Sr., father of the other two defendants, Fred Schafer, Jr., and Roland Schafer, for many years prior to the year 1908 had been engaged in the beer and soda water business in the city of Festus, Missouri, and had been a customer of the plaintiff, had accumulated property and had established a line of credit with the plaintiff company. In 1908 Fred Schafer, Sr., disposed of the business, including machinery and real estate, to D. A. Dees, Sr., and D. A. Dees, Jr., who conducted the business until December 30, 1911. During all of this time they had been handling the product of the plaintiff company. On the date last stated the two Schafers, Fred Schafer, Sr., and Fred Schafer, Jr., with D. A. Dees, Sr., and D. A. Dees, Jr., went to the office of the plaintiff company in the city of St. Louis, where a written contract was entered into between D. A. Dees and Fred Schafer, Jr., whereby in consideration of $ 3,000 in cash and $ 3,000 in notes, which were owned by Fred Schafer, Sr., and executed by Dees and wife, being returned to Dees, the said Dees transferred the business to Fred Schafer, Jr., which included also the real estate then occupied by Dees and which formerly had been occupied by Fred Schafer, Sr., in conducting the business. Afterwards this real estate was conveyed by Dees to Fred Schafer, Sr., who held the property and subsequently by deed conveyed it to another.
Plaintiff's evidence tends to prove that at the time the contract was entered into Fred Schafer, Sr., in the presence of Dees, Sr., and Jr., and other employees of the plaintiff company, stated to Mr. Schaus, the manager of plaintiff corporation, that he (Fred Schafer, Sr.) was buying back the business from Mr. Dees, and that the business would be run in the name of Fred Schafer, Jr., and that this was done for the reason that Fred Schafer, Jr., had a good reputation among the saloon men, and that he, Fred Schafer, Sr., had made a good many enemies, and for that reason the business would be done in the name of Fred Schafer, Jr., but that Fred Schafer, Sr., was with his son in the business and was responsible. The evidence tended to show that Fred Schafer, Sr., at the same time ordered beer to be sent to Festus and shipped to Fred Schafer, Jr.; that said Fred Schafer, Sr., had stated to Dees, Jr., that he would buy the property back and run the business in the name of Fred Schafer, Jr.
The evidence further tended to show that from January 1, 1912, both Schafers ordered beer listed in the account sued on, and that they both paid sums of money on the account, Schafer, Sr., having visited the plaintiff's office on several occasions and made payments; that in 1915 Fred Schafer, Sr., while in the plaintiff's office ordered beer sent to Festus, and told the officers of the plaintiff company that he was going to California and that they must not let his son Fred, Jr., run out of beer while he was gone, as he (Fred Schafer, Sr.), was responsible.
It is further shown by the evidence that Fred Schafer, Jr., and Roland Schafer were without means, and while the account on the books of the plaintiff company was carried in the name of Fred Schafer, Jr., and Schafer Brothers, plaintiff's evidence tended to prove that this was done at the request of Fred Schafer, Sr., and that plaintiff company would not have extended credit to the partnership except for the fact that Fred Schafer, Sr., represented that he was interested in the business and would be responsible for the debts of the partnership.
There was further evidence on behalf of plaintiff which tended to show that after December 30, 1911, the defendant Fred Schafer, Sr., took a considerable interest in the business in the way of looking after its customers and selling them beer; that he was around the place of business constantly, also was looking after the deliveries of the beer, which were made daily to their various customers; that he gave orders and directions to the employees, collected rent from the property, and also collected the firm's accounts, and gave advice to their customers who were in the saloon business in reference to the manner of conducting their business.
There was evidence from Mr. Dees, Sr., who after December 30, 1911, conducted a saloon business at Festus, Missouri, and handled the defendant's product, that Fred Schafer, Sr., had stated to him that the business was run for himself and the boys; that the reason it was run in the name of Fred Schafer, Jr., was because he could control the trade, inasmuch as Fred Schafer, Sr., had obtained the ill will of the customers and they did not like him. Further, that he and the boys were partners, which statement was made by Fred Schafer, Sr., on various occasions.
Countervailing testimony on behalf of the defendants indicated that Fred Schafer, Sr., had no interest in the business, and that it was owned exclusively and conducted in the name of Fred Schafer, Jr., and Schafer Brothers.
As to the admission of testimony. Upon the trial plaintiff offered in evidence the deposition of D. A. Dees, Jr., in which the witness testified as to declarations of Fred Schafer, Jr., and Roland Schafer to the effect that Fred Schafer, Sr., was their partner in the business. The testimony when first offered was not admitted by the court, inasmuch as Fred Schafer, Sr., was not present at the time, and there had been no evidence introduced by the plaintiff showing the existence of the partnership. Subsequently Roland Schafer and Fred Schafer, Jr., were witnesses on behalf of the defendants and gave testimony to the effect that Fred Schafer, Sr., had no interest in the business, and was not a partner.
After laying a proper foundation, which is not questioned, the plaintiff, in rebuttal, again offered the deposition of D. A. Dees, Jr., which contained statements contrary to and inconsistent with their testimony given in the trial, and which was to the effect that Roland Schafer and Fred Schafer, Jr., had made statements that Fred Schafer, Sr., was a partner. This testimony so offered in rebuttal was not for the purpose of proving a partnership, but as a matter of impeachment to affect the credibility of the witnesses Roland Schafer and Fred Schafer, Jr. This is complained of as error.
Whether such declarations made by one partner in the absence of another was admissible in the present case as evidence tending to establish a partnership, need not be here ruled by us inasmuch as it was not offered for that purpose. We think the evidence was competent for the purpose of impeaching the witnesses Roland Schafer and Fred Schafer, Jr., inasmuch as it related to a fact material to the issue on trial concerning which the witnesses had testified. Even though it be conceded that the statements of Roland Schafer and Fred Schafer, Jr., to the effect that their father Fred Schafer, Sr., was a partner in the business was not competent in the first instance to establish a partnership,...
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