Anstee v. Ober

• Decision Date: 03 June 1887
• Parties: ALFRED ANSTEE, Respondent, v. J. D. OBER ET AL., Appellants.
• Court: Missouri Court of Appeals

26 Mo.App. 665

ALFRED ANSTEE, Respondent, v. J. D. OBER ET AL., Appellants.

Court of Appeals of Missouri, St. Louis.

June 3, 1887

APPEAL from the Laclede County Circuit Court, W. J. WALLACE, Judge.

Reversed and remanded.

FYAN KELLERMAN & MORAN, for the appellants.

NIXON & MOORE, for the respondent.

OPINION

THOMPSON J.

The plaintiff recovered a verdict and judgment against both the defendants, from which they prosecute this appeal. The action is brought to recover damages for a breach of the following contract:

" SPRINGFIELD, December 26, 1884.

Memorandum of agreement between J. D. Ober and Alfred Anstee.

The said Anstee enters into the employ of said Ober for the year 1885, for the consideration of six hundred dollars, to assist him on his farm, located on Gasconade river, in Laclede county--attending to the duties of a creamery, building houses, and any reasonable work required by said Ober. Witness our hands this day and date above written.

Signed in duplicate.

J. D OBER,

by R H. OBER,

ALFRED ANSTEE."

It is perceived that this instrument purports to be a contract between J. D. Ober and the plaintiff, and that R. H. Ober is not a party to it. The petition alleges that the plaintiff " entered into a contract with the defendants, by which he was to work for them on their farm, in the county of Laclede, for the year 1885, which will more fully appear by the said contract, which is herewith filed and made a part of this petition," etc. The contract thus exhibited and made a part of the petition is the contract above quoted. The plaintiff testified that this was the only contract under which he rendered services, and there was no evidence that there was any other. Nevertheless, against the objections of R. H. Ober, the plaintiff was allowed to give evidence tending to show that R. H. Ober was the real party in interest, with whom the contract was, in fact, made; and the case was submitted to the jury upon the theory that if J. D. Ober made the contract with the plaintiff, and under the contract rendered services for both defendants, and if both defendants were jointly interested and partners in the farm, and if the contract was made for their joint benefit, the plaintiff was entitled to recover against both of them for a breach of it.

I. It seems, in the state of our decisions, that there was no error in these rulings. It was held, in the case of See v. Cox (16 Mo. 166), one of the earliest cases under our code of procedure, that the plaintiff might sue an attorney, upon a note purporting to be made by the defendant as attorney for a named principal, and recover against the defendant upon evidence, either that the defendant was a partner of the person in whose name, as principal, he executed the note, or that the defendant made the note without authority from the principal. That case in its facts is very much like the case at bar. The petition simply alleged that the defendant, Cox, executed a note annexed to the petition and prayed judgment against him for the amount of the note, and the note itself was signed " J. W. Rodes, by his attorney, W. B. Cox." That decision was followed by the supreme court in Sanders v. Anderson (21 Mo. 402), where the action was against Anderson and others upon a promissory note signed, " Steamboat Ben Lee and owners, by W. R. Wilson, Captain." The petition stated that the defendants; " by their promissory note" thereto annexed, " promised to pay," etc.; and it was held that the action was well brought. The court reaffirmed the doctrine of See v. Cox (16 Mo. 166), that, " in suing upon a promissory note, it was not necessary to specify by what name the party bound himself, but that it was sufficient to state the obligation generally, leaving the particular matter of it to proof." The court, also, approved the doctrine of Grafton v. Bank (4 N.H. 236), that individuals, as well as partnerships, may assume any name they please, and promissory notes, executed by them in their assumed names, are obligatory upon them. It is true that Sanders v. Anderson is not precisely like the case at bar; because there, as the court held, the defendants, being, in fact, the owners of the Steamboat Ben Lee, were, in the note, sufficiently identified by description; but we cite the case to show the general rule, liberally applied under our code of procedure, that a party need not, in his pleading, set forth the evidence by which he proposes to make out his case (Gates v. Watson, 54 Mo. 585, 591; McNees v. Railroad, 22 Mo.App. 224, 233); and if he does so it may be regarded as surplusage. If R. H. Ober, by reason of difficulties with his creditors, or for any other reason, attempted to carry on this business in his son's name, and in that name made a contract with the plaintiff, which, in fact, was understood to be a contract between the plaintiff and R. H. Ober himself, the plaintiff may, upon the authority of See v. Cox (16 Mo. 166), maintain this action against him upon the contract, jointly with J. D. Ober, and recover, by proving that he and J. D. Ober were carrying on the farm in partnership; and although the petition might have been better drawn, we are of opinion that it is good after verdict.

II. The separate answer of J. D. Ober set up that the plaintiff represented himself to be a practical, skillful, and experienced farmer and stock raiser; an experienced and skillful dairyman and butter-maker, and well and fully informed in all the modern methods of managing the creamery business and the business of butter-making; and, also, that he was a skillful carpenter and joiner. It, also, alleged that the defendant was about to commence farming and stock raising, on a large scale, and was to carry on the creamery and butter making business, and, in order to do this, would need creamery houses, and other buildings; that, relying upon the plaintiff's representations, the defendant, J. D Ober, agreed to employ him; that the representations so made by the plaintiff were false and fraudulent; that the plaintiff knew nothing about farming or stock raising, or the butter-making business, was no carpenter and joiner, and that he, in every respect, failed to fulfill his representations. The answer then sets up that the plaintiff worked and acted, in a secret way, against the interests of this defendant; would do no work himself, and advised other employes to shirk their duty, and to kill time; and that, owing to his actions, in this regard, and his failure to perform the duties for which he was...