Callaway v. Woodward

• Decision Date: 24 December 1887
• Citation: 28 Mo.App. 320
• Parties: M. N. CALLAWAY, Respondent, v. W. H. WOODWARD et al., Appellants.
• Court: Kansas Court of Appeals

28 Mo.App. 320

M. N. CALLAWAY, Respondent, v. W. H. WOODWARD et al., Appellants.

Court of Appeals of Missouri, Kansas City.

December 24, 1887

APPEAL from Audrain Circuit Court, HON. ELIJAH ROBINSON, Judge.

Reversed and remanded.

The case and facts are stated in the opinion of the court.

G. B MCFARLANE, for the appellants.

I. The evidence fails to show any such connection of the firm of W H. Woodward & Son with the transaction as would make it a partnership matter so as to bind defendant, Henry Woodward and the judgment against him was improper. 1 Lindley on Partnership (Ewell's Ed.) 309; Cayton v. Hardy, 27 Mo. 536. There is no evidence showing any connection between this transaction and the firm business of Woodward & Son, nor is there any evidence whatever connecting Henry Woodward personally with it. The firm name was never used. The money was not paid to the firm. No compensation was charged by the firm. Henry Woodward had no personal interest in the title to the land. The land was bought by W. H. Woodward before the partnership was formed. Both tracts were " in the same fix." Plaintiff and W. H. Woodward had each warranted the title to his respective tract. Breach of warranty was threatened. They met and agreed (taking plaintiff's version) to buy up the outstanding title, each to pay one-half the cost. The negotiation with Sanders was by W. H. Woodward alone. Title was made to him alone. Defendants both testify that it was a private matter of W. H. Woodward and not a firm affair. Nothing was said or done by either to deceive plaintiff as to whose business it was. There was no evidence to justify the instructions authorizing a verdict against Henry Woodward.

II. Under the evidence, plaintiff could not recover on the ground of malfeasance of agent to principal. W. H. Woodward was not an agent, strictly speaking, but was simply engaged with plaintiff in a joint enterprise (again adopting plaintiff's evidence), and sustained to him the relation of partner rather than that of agent.

III. It appears that, as a matter of fact, defendant, W. H. Woodward, had bought the land and had obtained a deed thereto from Sanders, before the time of the agreement plaintiff claims to have made with him. If that is so, then plaintiff's action should have been for misrepresentations and deceit and the measure of damage would have been different. 3 Sutherland on Damages, 589; Brownlee v. Hewitt, 1 Mo.App. 360; Langdon v. Green, 49 Mo. 363.

IV. Much of the evidence in this case, while admissible to explain the relation of the parties and the inducement to the agreement, at the same time was calculated to confuse and mislead the jury, though properly warned by instructions. The case should have been tried before a chancellor, or upon special issues. The result might not have been the same.

M. Y. DUNCAN, for the respondent.

I. This was an action at law and the verdict of the jury is conclusive. The court of appeals has no power to review the finding of facts in actions at law. Beck v. Pollard, 55 Mo. 26; Oakes v. Ins. Co., 52 Mo. 237; Capelle v. Brainard, 52 Mo. 479.

II. The court committed no error in the instructions given on behalf of respondent, nor in refusing the one asked by defendants. There was no evidence to support that instruction. The testimony of both the Woodwards was squarely against it, while the respondent's evidence was pointed and clear against any such a theory as that contained in the instruction.

III. This suit was properly brought against both the Woodwards. This transaction was within the scope of the partnership. Flanagan v. Alexander, 50 Mo. 50. Henry Woodward testifies as follows: " I went to Memphis for the purpose of purchasing the claim of Sanders to forty acres. I appointed an agent to buy the land and came home. The agent wrote us that he had bought eighty acres for one hundred dollars. We then wrote the agent at Memphis to have deed made to my father and send him." Here it is plain that Henry was a full partner in the matter. How could the agent at Memphis buy eighty acres when he was only directed to buy forty? How could he know anything about the matter except as he had been informed and instructed by Henry? There is no pretense that the agent obtained the information through any one else. Then it follows, as a matter of course, the " us" and " we" in Henry's testimony were really W. H. and Henry, and that they were jointly engaged in defrauding defendant out of his money. To do so Henry went to Memphis and W. H., his father, went on Sunday to respondent's house. So eager was he to rope the respondent in that he could not rest over Sunday. Henry was pulling one end of the rope in Memphis and his father, W. H., dallying with the other end on Sunday at old man Callaway's.

ELLISON J.

This is an action against defendants as partners. The petition charges that they were partners in the real-estate agency business; that, as such partners, they fraudulently obtained from plaintiff the money sued for, in the following manner That plaintiff and defendant, W. H. Woodward, each purchased at sheriff's tax sale a forty acres of land; the tract purchased by the plaintiff...