Campbell v. Hood

• Decision Date: 30 April 1840
• Parties: CAMPBELL AND MAISON v. HOOD.
• Court: Missouri Supreme Court

6 Mo. 211

CAMPBELL AND MAISON

v.HOOD.

Supreme Court of Missouri.

April Term, 1840.

APPEAL FROM THE CIRCUIT COURT OF COOPER COUNTY.

HAYDEN, for Appellant. 1st. That Maison was a competent witness, and that the court erred in refusing the defendant, Campbell, leave to use him as such on the trial of the cause. See 15 Johns. R. 233, Condruson v. Vanslyck; 14 Johns. 122; Phil. Ev. 61. 2d. That the court erred in instructing the jury that the law requires less, or slighter evidence of the existence of the fact of a partnership between the defendants, than it would require to prove the same fact in a similar contest between strangers. That no such difference exists or can be found in the law. That the fact being the same, the proof is the same, and must be made through the same channel, and by the same means, and cannot be effected by the facility, or want of facility, in making the proof. 3d. That the jury found a verdict contrary to law and evidence. See Gow on Partnership, 254, top paging, 255; 14 Johns. R. 215; 20 Johns. 176; 1 Caine's R. 184; 2 Binney R. 245; 2 Starkie's Ev. 582-3 and 6. 4th. That the court erred in refusing to grant defendants a new trial.

ADAMS, for Appellee. 1st. That the evidence of John Hood was relevant, and the court committed no error in not excluding it from the jury. See, his evidence in the bill of exceptions. 2d. That the court did not err in not permitting the jury to pass upon the case as to the defendant, Maison, and in excluding him as a witness. On this point, I refer to the analogous case of joint trespassers. See 1 Starkie's Ev. top page 111, 5th American edition; 14 Johns. R. 119; 15 Johns R. 223; 1 Phil. Ev. 61. 1 Wend. R. 123, Schemerhorn v. Schemerhorn; Bohun v. Taylor, 6 Cowen R. 313. 3d. The court instructed the jury correctly. See 3 Kent's Com. 31, 3d edition; Cary on Partnership, edited in 14th No. Law Library, p. 55; 2 Starkie's Ev. 585-6, 5th American edition; Gow on Partnership, 31. 4th. The motion for a new trial was properly overruled. Foster and Foster v. Nowlin, 4 Mo. R. 23; 4 Mo. R. 361; 4 Mo. R. 540; 5 Mo. R. 530; 1 Bibb R. 398; 2 Pirtle Digest, 106.

NAPTON, J.

This was an action of assumpsit brought by Hood against Campbell and Maison, the appellants, in the Cooper Circuit Court. The defendants pleaded non-assumpsit and set-off. Issue was taken on the plea of non-assumpsit, and nil debet replied to the plea of set-off, and a verdict and judgment were given for plaintiff.

The bill of exceptions preserve the following as the testimony given in the case. It was proved that plaintiff was employed as collecting clerk for the house of Thomas M. Campbell, in Boonville, some time in the month of August, 1837, and remained in said employment, until some time in April, 1839--that the wages of such clerks varied from $300 to $500 per annum. The plaintiff then introduced one Thomas W. Davis, who testified that some seven or eight years ago he was employed as a clerk in said house; that he continued in such employment for four years successively: that said house was at that time a branch of another house then in the town of old Franklin in Howard county; that whilst he was in said employment, the defendant, Maison, took the chief control and management of the business; that whilst he was there, the defendant Maison spent nearly all his time in the branch at old Franklin; that he, witness, kept the books in the establishment at Boonville, and that there was no account or charge either against Maison or Campbell; that when either got an article no charge was made; that during the time he remained in the establishment, the defendant, Campbell, went to the City of Philadelphia where his father resided, in company with two ladies, and remained some months, and whilst said Campbell was there, in Philadelphia, said defendant went on to Philadelphia and purchased a stock of goods for said establishment. This witness further stated, that Campbell and Maison kept their business secret; that he never heard them talk about it; that they frequently conversed when by themselves. Witness further stated, that the sign over the door was “Thomas M. Campbell”; that the books and accounts were made out in the name of Thomas M. Campbell; that the business was conducted in the name of Thomas M. Campbell. Witness further stated, that the house he was employed in, was the same for which plaintiff was employed; that Maison had the management of the establishment at Franklin, and performed the duties of clerk; that goods were sent from the house in Boonville.

John Hood, a witness on the part of the plaintiff, testified that some years since, the defendant, Maison, wrote to witness, who then lived at Jonesborough, Saline county, for the purpose of employing him as a clerk in the said store at old Franklin. Witness did not recollect whether said Campbell's name was signed to said letter or not; that witness went and contracted with said Maison, without consulting Campbell about the contract, and continued to act as clerk in said establishment for three years; that the business was conducted in the name of Thomas M. Campbell, the sign over the door was Thomas M. Campbell, and witness understood that the house in Boonville was a branch of said establishment; that Maison took the chief management of the business whilst witness lived there; that he (witness), kept the books of the establishment, and that no account was kept either against Maison or Campbell, and no charge made when either procured articles from the store, and witness never knew of the clerk in a house who was not charged for articles gotten by him. Witness further stated, that there was more mystery about the establishment than any he ever knew; that when he was employed by Maison, he was told not to divulge anything that he might learn concerning the business of the house. Witness further stated, that on one occasion, during his said employment, defendant Maison told him, that he (Maison), had never been clerk for any man. The defendant objected to the relevancy of the testimony of said Hood, and moved that he be excluded as a witness; which motion was overruled.

The defendants then introduced two witnesses, who each testified in substance, that they had been acquainted with defendants for a long time; that the said mercantile establishment in Boonville was conducted in the name of Thomas M. Campbell; that all contracts and business transactions relating to the concern were done in the name of said Campbell; that the sign over the door was Thomas M. Campbell and that said Maison had for several years past acted and still acted as clerk of said Campbell; that said Maison was a very attentive and diligent clerk; that said Maison came to this country some twelve years since, as a clerk for one Giles M. Samuels. Witness stated that said Maison seemed to take considerable control and management of the said house in Boonville, but never saw anything in his conduct inconsistent with that of a good clerk. The above embraces the material part of the testimony.

After closing the testimony, defendants moved the court to send the jury out to pass upon the case of said Maison, that they might find for him on the issues; in order that the said Campbell might use the said Maison as a witness upon the trial of the case as to said Campbell. This motion was overruled, and the defendants excepted. The defendants then offered to introduce Maison as a witness in the cause, upon the ground that there had been no evidence showing that there was any contract implied or expressed by said Maison for the services of plaintiff, and stated what was proposed...