Boyajian Bros. v. Reinheimer.

• Decision Date: 25 March 1921
• Docket Number: No. 2759.,2759.
• Citation: 229 S.W. 441
• Parties: BOYAJIAN BROS. v. REINHEIMER.
• Court: Missouri Court of Appeals

229 S.W. 441

BOYAJIAN BROS. v. REINHEIMER.

No. 2759.

Springfield Court of Appeals. Missouri.

March 25, 1921. Transferred to Supreme Court.

Appeal from Circuit Court, Newton County; Chas. L. Henson, judge.

Action by Boyajian Bros., a copartnership, against L. Reinheimer. Judgment for plaintiffs, and defendant appeals, Transferred to Supreme Court.

Haywood Scott and Pearson & Butts, all of Joplin, for appellant.

Paul G. Koontz and Paul A. Ewert, both of Joplin, for respondents.

COX, P. J.

Action for goods sold. Judgment for plaintiffs, and defendant has appealed.

The caption of the petition gives the names of the parties as follows: "Boyajian Brothers, a Copartnership, v. L. Reinheimer, Defendant." In the body of the petition the names of the persons composing the partnership are given as Joseph Boyajian, Charles Boyajian, John Boyajian, and Bedros Murachanian. The petition was in three counts, all similar except as to dates and amounts. The first count alleged shipment on March 27, 1915, of jewelry of the value of $44.50; that it was shipped to defendant on what is known to the jewelry trade as memoranda account or consignment, to wit, "for the purpose of permitting said defendant to see the said jewelry and make selection therefrom in accordance with his needs, with the express understanding that he was to pay for such articles as were selected at the list price and return the balance upon plaintiff's demand"; that plaintiffs had made demand for the return of the goods or for the purchase price; that defendant had refused to make any selection or to return the goods, but had retained possession of them and converted the same to his own use.

The second count has the same allegations except the date is June 2, 1915, and the amount $160.

The third count is the same except the date is December 20, 1915, and the amount is $54.50.

The answer admits the receipt of the goods described in each count of the petition for the purpose of permitting defendant to sell them on consignment and denies all other allegations. Further answering, a plea of settlement and payment is made. No reply was filed.

Defendant filed an affidavit designed to put in issue the allegation of a partnership. At the close of the testimony, defendant asked for a peremptory instruction to find for him which was refused.

The court gave one instruction for plaintiffs as follows:

"The court instructs the jury that, if they find and believe from the evidence that defendant did not return or pay for all of the goods, tney shall find the issues for plaintiffs and render judgment against the defendant for the amount of goods not returned or paid for."

One instruction for defendant was given which it will not be necessary to notice.

The jury returned a verdict for plaintiffs on each count—on the first count for $44.50; on the second count for $104; on the third count for $54.50. Judgment was rendered accordingly.

Appellant insists that his peremptory instruction should have been given for the reason that defendant's answer set up an affirmative defense, and, no reply having been filed, it stood admitted on the pleadings, and that entitled him to a peremptory instruction. If defendant wished to take advantage of the failure of plaintiffs to file a reply, he should have moved for judgment on the pleadings. This he did not do, but vent to trial on the issues the same as if a reply had been filed, and by doing so waived the point. Roden v. Helm, 192 Mo. 71, 90 S. W. 798; Brewster v. Land & Imp. Co., 247 Mo. 223, 152 S. W. 302; Shull v. Boyd, 251 Mo. 452, 472, 158 S. W. 313; McMurray v. McMurray, 258 Mo. 405, 416, 167 S. W. 513; Stringer v. Mfg. Co., 177 Mo. App. 234, 162 S. W. 645; Bird v. Fox (Kansas City Court of Appeals) 193 S. W. 941, 946.

The next contention is that this is a suit for conversion, and there is no evidence of the value of the property at the time of conversion, and for that reason a peremptory instruction for defendant should have been given. We do not agree with appellant that this is a suit for conversion. While it is true that plaintiff states in his petition that defendant retained the goods and converted them to his own use, yet the facts of the whole transaction are pleaded, and they do not show a conversion. The petition shows that plaintiff sent the goods to defendant for him to examine and retain what he desired at the list price and return the remainder; then charges that he made no selection and did not return the goods. This meant that by retaining all the goods he was held as having bought them at the list price, and his petition charged the list price as the value of the goods. We think the action was one for goods sold and delivered, and not an action for conversion.

Complaint is made that the names of the partners did not appear in the caption of the petition, and for that reason the petition did not show that plaintiffs had capacity to sue, and therefore no judgment could be rendered. The names of the partners did not appear in the caption of the petition, but they did appear in the body of the petition, where their names were given and their business specified, and this was sufficient. State, to Use, v. Patton, 42 Mo. 530; Wolff v. Ward, 104 Mo. 127, 157, 16 S. W. 161.

By answering and going to trial without attacking the sufficiency of the petition, the defendant waived any defect as to description of parties appearing on the face of the petition. State ex rel. v. Chemical Works, 249 Mo. 702, 156 S. W. 967.

Error is assigned in the admission of testimony. The goods sued for were sent to defendant on what was called a memoranda charge; that is, they were shipped to defendant with permission for him to select such as he might want to retain and then return the remainder. Plaintiffs' suit was based on three shipments of this character, and it was charged that defendant had not returned or paid for all the goods. In the course of the testimony some ledger sheets from the books of plaintiff were attached to depositions and admitted in evidence. These sheets showed that defendant had bought some goods outright from plaintiffs. These were entered on what was called a "charge account," while those sued for were charged on what was called a "memoranda account," and the ledger also showed some remittances by defendant that were credited on the charge account. It is now contended that it was error to admit the entries in the charge account on the ground that it confused the jury, and that they might have taken into consideration goods sold on the charge account in arriving at a verdict. We do not think the jury could have been confused or misled by this testimony. The same depositions also show that defendant only owed plaintiff 50 cents on the charge account, so the jury could not have taken the goods sold on that account into consideration in determining the amount of the verdict. The only effect of this testimony was to show that certain remittances made by defendant had been credited on the charge account. This the plaintiff had the right to do in the absence of a specific instruction as to where to place the credit. Furthermore, defendant had pleaded payment, and it was competent for plaintiff to show that proper credit had been given defendant for all remittances received from him, and that they were not credited on the price of the goods involved in this suit.

Objection is made to the instruction given on behalf of plaintiff. This instruction authorized a finding for plaintiff without finding that they were partners. If defendant's contention that the fact of a partnership between plaintiffs was put in issue by the affidavit filed for that purpose is correct, then this instruction was erroneous.

The affidavit by which it was sought to put in issue the fact of plaintiffs partnership is as follows:

"Tire defendant on his oath states that he has no information as to whether or not the plaintiffs are or are not a copartnership; therefore defendant on oath denies that plaintiff is a copartnership."

The statute (section 1415, Stat. 1919) provides that, where plaintiffs or defendants sue or are sued as a partnership, and the names of the several partners are set forth in the petition or answer, it shall not be necessary to...