Bowen v. Epperson

• Decision Date: 19 April 1909
• Citation: 118 S.W. 528,136 Mo. App. 571
• Parties: BOWEN v. EPPERSON et al.
• Court: Missouri Court of Appeals

118 S.W. 528

136 Mo. App. 571

BOWEN v. EPPERSON et al.

Kansas City Court of Appeals. Missouri.

April 19, 1909.

1. TRIAL (§ 243)—INSTRUCTIONS — APPLICABILITY TO CASE.

Where the court had properly instructed that defendant could not be held liable as a partner unless his conduct led plaintiff to believe he was a partner, a subsequent instruction, submitting the theory of an actual partnership by virtue of a contract, was erroneous and confusing.

2. TRIAL (§ 295)—INSTRUCTIONS—CONSTRUCTION AS A WHOLE.

Error in submitting the case upon the theory of an actual partnership, after properly instructing that defendant could only be held liable as a partner if his conduct had led plaintiff to believe he was such, was not cured by the fact that the first instruction given was proper.

3. TRIAL (§ 191) — INSTRUCTIONS — ASSUMPTIONS BY JUDGE AS TO FACTS.

In an action against defendants as partners for work done, where the court instructed that the relationship between defendants made them prima facie partners, but there was evidence tending to explain their relation and show that one of them was not a partner in fact, an instruction to find for plaintiff if either of defendants ordered the work done was erroneous, as directing a verdict for plaintiff on the ground that an actual partnership existed.

4. TRIAL (§ 234)—INSTRUCTIONS — ADMISSIBILITY OF EVIDENCE.

Where a contract between appellant and the other defendants was admissible to show that he was not a partner of the others, it was error to instruct, in an action against defendants for work claimed to have been done for them as partners, that if plaintiff did not know of the existence of the written contract when

he made the goods, it should not be considered by the jury.

5. PARTNERSHIP (§ 48)—ACTIONS — ADMISSIBILITY OF EVIDENCE.

In an action against defendants for work claimed to have been done for them as partners, a contract between defendants, by which title to partnership property of the others was conveyed to one of them to secure advances he might make to enable them to perform a partnership contract, and to secure to him a certain sum out of the profits of such contract, was admissible to explain such defendant's connection with the others, and to show that he was not a partner.

6. PARTNERSHIP (§ 34) — RELATION — PARTNERSHIP BY ESTOPPEL.

Liability as a partner by a holding out as such to third persons, where no partnership in fact exists, is imposed on the theory that by his conduct persons dealing with the apparent partner were led to believe that a partnership existed.

7. PARTNERSHIP (§ 34)—EVIDENCE—PROOF OF HOLDING OUT—ADMISSIBILITY.

Matters leading one to believe that a partnership existed must have occurred before such belief was formed and acted upon, in order to create a partnership liability by estoppel.

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

Action by C. K. Bowen against U. S. Epperson and others. From a judgment for plaintiff, the defendant named appeals. Reversed and remanded.

Ashley, Gilbert & Dunn, for appellant. L. E. Durham, for respondent.

ELLISON, J.

Plaintiff instituted this action against the three defendants as partners. His claim is based on an account for photographs alleged to have been taken by him and furnished to defendants at their request. He obtained judgment in the circuit court for $489, and defendant Epperson alone appealed.

Each of the defendants filed an answer denying the partnership under oath. Defendant Epperson admitted getting photographs of the value of $7, which sum he tendered, and for which he offered to permit judgment. The principal controversy here relates to the attempt to make out defendant Epperson's liability by reason of a partnership. It appears that defendants Winning and Rudd were associated together as partners, and that among other matters of partnership, was a contract which Rudd had made with the...