Bissell v. Warde

• Citation: 31 S.W. 928,129 Mo. 439
• Parties: Bissell et al., Executors, v. Warde, Appellant
• Decision Date: 25 June 1895
• Court: Missouri Supreme Court

31 S.W. 928

129 Mo. 439

Bissell et al., Executors, v. Warde, Appellant

Supreme Court of Missouri, First Division

June 25, 1895

Appeal from St. Louis City Circuit Court. -- Hon. D. D. Fisher Judge.

Affirmed.

W. C and J. C. Jones for appellant.

(1) The evidence does not sustain the finding of the referee and the judgment of the court. (2) The court erred in the admission of improper evidence offered by plaintiff, i. e., that of Collins, Roberts, and transcript in Malone v. Collins. Bank v. Outhwaite, 50 Mo.App. 124. (3) The court erred in the exclusion of proper evidence offered by defendant, i e., the letters of Collins. (4) The referee failed to take the oath required by law. Vogt v. Butler, 105 Mo. 479; R. S. 1889, sec. 2143. (5) The adjournments and continuances by the referee were directly contrary to the statutory provisions, to wit: R. S. 1889, sec. 2144. (6) The report of the referee fails to state the facts found by him. (7) The case at bar is wholly wanting in the sine qua non of a secret partnership, i e., secrecy, for it has never been contended by the plaintiff, or any of the witnesses that the alleged copartnership was concealed from plaintiff, but on the contrary, the only theory on which they attempt to ground their action is that a copartnership actually existed, and that the defendant published and proclaimed himself the partner of the witness Collins, or permitted himself to be so published, and that from this fact itself liability arises.

Rufus J. Delano and Alex. Young for respondents.

(1) "A recital in referee's report that he had been duly qualified is at least prima facie evidence of the fact," particularly where parties proceeded without objection to hear the whole case. Edwardson v. Garnhart, 56 Mo. 86. (2) A person who holds himself out as a partner is liable as such to a third person, although the agreement does not create a partnership as between the parties themselves. Young v. Smith, 25 Mo. 346; Gates v. Watson, 54 Mo. 591. Taking part in transaction of partnership business so as to lead to the belief that the party so acting or speaking was a principal, or silence when referred to as a partner, or using the word "we" is evidence of partnership. Sherwood v. Langdon, 21 Iowa 518; Parshall v. Fisher, 43 Mich. 529; Cassidy v. Hall, 97 N.Y. 159; Bliss v. Schwartz, 64 Barb. 215. (3) Warde allowed himself to be held out as a partner, respondents (third person) gave credit, and Warde is estopped from denying that he is a partner. Marble v. Lypes, 82 Ala. 322; Cirkel v. Ellis, 36 Minn. 323; Beecher v. Bush, 45 Mich. 188.

Robinson, J. Brace, C. J.; Macfarlane, J., and Barclay, J., concur.

OPINION

Robinson, J.

This is a suit brought by the executors of James R. Bissell, who was the owner and proprietor of a certain printing establishment carried on in the city of St. Louis, during the year 1881, under the name and style of the "Times Printing House."

The defendant is alleged to have been a partner of one John J. Collins, who was a theatrical manager; that prior to the first day of April, A. D. 1881, defendant and said Collins formed and entered into a partnership for the purpose of carrying on a theatrical business in the United States, and this partnership was continued up to March, 1894; that by agreement between defendant and said Collins all the business of said partnership was done and transacted under the name of John J. Collins, who had the control and supervision of the business; that he attended to securing printing, tickets, lithographs, etc., and the furnishing of money and the making of contracts of all kinds, and generally superintended the financial and business part of said undertaking, the defendant contributing his talents and services as an actor to said partnership; that during the months of April, May, June, July, August, September, October, November, December, 1881, and January, February, March and April, 1882, said James R. Bissell, at their special instance and request, did work, printing and lithographing for said firm, and furnished tickets and cash to be used in and for said business to the amount of $ 6,373.91, and that they paid him from time to time, on account thereof, various sums aggregating $ 1,306.96 leaving a balance due him from them of $ 5,056.95; that on January 3, 1887, said Bissell departed this life, leaving a last will and testament, by which the plaintiffs were appointed executors, which will was afterward admitted to probate, etc.; that the balance above stated is now due; that demand therefor was made in the month of April, 1883. Judgment is asked for that sum with interest and costs. An itemized account was filed with the petition. The answer was a general denial.

On November 22, 1887, the court of its own motion, sent the case to a referee to try all of the issues. The case was continued from time to time by the parties, and, finally, at the October term, 1892, the report of the referee was filed, together with the testimony taken by him.

Charles E. Ware testified that Messrs. Warde and Collins called at the Times Printing House after the work was ordered and together read the proofs of all the work that was being done for them, and Collins spoke of the partnership between him and defendant, and Collins came to the manager of the printing house and persuaded him to go to Bloomington and there he met both Collins and the defendant and advanced them $ 250 for the printing house. This money was sent to Collins, the manager, for the partnership. "I had never seen any article of copartnership between them until after this bill was incurred and until after this case came up. The account filed with the petition is a copy of the account from our books. The prices charged were reasonable, or were agreed upon when the goods were sent, and bills were made out and forwarded to Collins, the manager, at various points. When we first began to furnish the work, defendant told me that they had gone into partnership and were going out on a tour; and that he was going to be the coming star for legitimate drama, and that Collins was with him and that he had a five years' contract. They drew on us; that is, John J. Collins, manager. We advanced in drafts $ 2,200 and got back $ 1,186.86. The total balance of the indebtedness is $ 5,056.56, after deducting the credits, which has never been paid us. Mr. Bissell was proprietor at the time. He is now dead. The defendant was introduced to me by Collins as his partner. He said the contract for partnership was for five years. The account was carried on our books and was headed 'John J. Collins, for Warde.' The first time I saw the defendant was when he was brought down by Mr. Collins and was introduced to me as his partner. The first conversation was at this time. The accounts were always sent to Collins, except when I took the account to Bloomington."

S. S. Bissell testified: "When I first saw the defendant he came in to negotiate for printing with Collins. Collins was manager for defendant at the time; they were partners. Collins brought defendant into our office and introduced him as his partner. I presented an itemized statement to defendant, when he and Collins were together at St. Joseph. We all three talked it over. In the talk in our office Collins said that they were going to star defendant. When I presented the bill at St. Joe, Collins examined it first; then defendant came in, and Collins handed him the bill. Defendant never told me he was interested in the bill, except that he spoke about their general ill-luck, and that they would be able to pay. At St. Joe, he spoke of their losses. He said that they had been playing in ill-luck, but expected to pull out yet."

John J. Collins testified that he had a business arrangement with defendant from April, 1881, to March 2, 1884, and produced a copy of the contract between them. Further testified that the bill sued on was for money advanced for the maintenance of the company; that defendant had begun an action against him for an accounting, in which he had alleged that Collins was his partner.

The contract of copartnership introduced in evidence was as follows:

"Partnership agreement made and entered into at the city of St. Louis in the state of Missouri, on the first day of September, A. D 1881, by and between John J. Collins and Frederick Warde. Witnesseth: Said Collins and Warde hereby mutually agree, and by these presents do enter into partnership for the purposes of carrying on the theatrical business in the United States.

"Said firm shall be known as Collins and Warde, but all business connected with said undertaking or enterprise shall be carried on in the name of John J. Collins.

"Said partnership shall exist, and said business shall be carried on, for a period of four years from the date hereof.

"Said Collins and his heirs shall furnish all the money necessary to conduct said business with success from time to time, as the same shall be required to successfully carry out the objects and purposes of said business and enterprise as his proportion of the capital stock of said concern, and said Warde shall not be compelled to furnish any money for said business whatever.

"Said Warde shall, as star, so called, contribute his time, energies and talent as an actor during the continuance of this agreement as his share and portion of the capital invested in said business, and he shall be under the control and management of said Collins and his heirs as an actor in said theatrical business during the continuance of this agreement.

"Said Warde shall act and perform in such plays as may be mutually agreed upon by the parties hereto, and in such places and at such times as said Collins and his heirs may select throughout the United States, and also...