Armstrong v. Henley

• Decision Date: 06 July 1914
• Docket Number: No. 11143.,11143.
• Parties: ARMSTRONG v. HENLEY et al.
• Court: Missouri Court of Appeals

170 S.W. 402

182 Mo. A. 320

ARMSTRONG v. HENLEY et al.

No. 11143.

Kansas City Court of Appeals. Missouri.

July 6, 1914.

Rehearing Denied October 5, 1914.

1. PARTNERSHIP (§ 284) — CONTRACTS — DISSOLUTION OF FIRM — INCORPORATION — EFFECT.

Where defendants, while doing business as a partnership, contracted to pay plaintiff, for certain services, one-third the net profits derived from the sale of a player piano, defendants, by dissolving the partnership, organizing a corporation, and transferring the business and their agency contract without plaintiff's consent, could not terminate their obligation to account for profits under the contract.

2. TRIAL (§ 85) — RULINGS ON EVIDENCE — OBJECTIONS — PARTIAL INVALIDITY.

Where an objection to a statement of the business of a corporation attacked the statement as a whole, and some parts of it were admissible, the objection was properly overruled.

Appeal from Circuit Court, Jackson County; J. H. Slover, Judge.

Action by Almon Armstrong against S. M. Henley and another. Judgment for plaintiff, and defendants appeal. Affirmed.

L. D. Tolle and Broaddus & Crow, all of Kansas City, for appellants. W. M. Eby and Haff, Meservey, German & Michaels, all of Kansas City, for respondent.

TRIMBLE, J.

This is an action for damages for breach of a contract. On September 1, 1909, plaintiff entered into a contract with defendants, then a copartnership engaged in selling pianos at retail in Kansas City under the name of the Henley-Waite Music Company, by which contract it was agreed that, if plaintiff would assist defendants in securing from the Melville-Clark Piano Company of Chicago the agency in Kansas City and vicinity for the sale of the Apollo player piano, defendants would give plaintiff, in return and as consideration for such aid and assistance, one-third of the net profits made from the sale of all such instruments shipped by the Melville-Clark Piano Company to defendants. Upon a trial of the case the jury returned a verdict for plaintiff, and defendants have appealed.

Complaint is made because the court did not confine the evidence of profits made by defendants on Apollo player pianos to the time between the date of the contract and July 10, 1910, but allowed plaintiff to show profits down to the institution of suit. On July 10, 1910, the business of defendants was incorporated under the same name, the Henley-Waite Music Company, and it is contended that, as plaintiff's petition is on a contract with the partnership, plaintiff can recover a share of only those profits made by the partnership, and not of those made by the corporation.

But the agency contract which plaintiff obtained remained in force as well after the incorporation as it did before, and the Melville-Clark Company continued to send Apollo player pianos under the agency contract. The suit is for damages for a breach of the contract with plaintiff as to a share of the profits made under the agency contract, and the measure of plaintiff's damages is one-third of the net profits made in the sale of such instruments sold under such agency, whether made by the partnership or the corporation. The record does not show who were the incorporators of the corporation, but the inference is that the partnership was merely...