Cannon v. Wing

• Decision Date: 14 June 1910
• Citation: 129 S.W. 718,150 Mo. App. 12
• Parties: CANNON v. WING.
• Court: Missouri Court of Appeals

129 S.W. 718

150 Mo. App. 12

CANNON v. WING.

St. Louis Court of Appeals. Missouri.

June 14, 1910.

1. EVIDENCE (§ 249)—ACTIONS.

In an action to recover money deposited for safe-keeping, it was not error to admit in evidence a memorandum signed by defendant's firm, reading "Due" plaintiff "one hundred dollars for safe-keeping," where its execution was not denied, and there was evidence tending to show that it was signed by defendant's partner in the course of the firm business.

2. PARTNERSHIP (§ 145)—BORROWING MONEY —LIABILITY.

One who deposited money with a partner for safe-keeping can recover against either or both of the partners, if the money was borrowed by one of them in the course of the firm business and went into the firm assets.

3. PARTNERSHIP (§ 145)—BORROWING MONEY —ACTION TO RECOVER.

In an action against a partnership to recover money deposited with a firm for safe-keeping, it was not error to instruct that if the money was deposited with an understanding with one of the firm that it might be used in the firm business until called for, and repayment was refused, plaintiff could recover.

4. PARTNERSHIP (§ 218)—LOANS—ACTION TO RECOVER—INSTRUCTIONS.

In an action to recover money deposited for safe-keeping, an instruction that, before plaintiff could recover against defendant partner, it must appear that the money was actually received, was properly modified by permitting a showing of receipt by the firm or by the other partner for the firm.

5. TRIAL (§ 260)—REFUSED INSTRUCTIONS— MATTER COVERED.

Instructions covered by those given are properly refused.

6. TRIAL (§ 252)—INAPPLICABLE INSTRUCTIONS.

Instructions not correctly stating the law as applied to the evidence are properly refused.

Appeal from Circuit Court, Lincoln County; Jas. D. Barnett, Judge.

Action by Daniel Cannon against Charles Wing. From a judgment of the circuit court in favor of plaintiff, on appeal from a justice's judgment for plaintiff, defendant appeals. Affirmed.

Avery, Young & Woolfolk, for appellant. W. A. Dudley, for respondent.

REYNOLDS, P. J.

This action was commenced before a justice of the peace against Charles Wing and William Wing, partners, by the filing of a statement to the effect that the defendants were partners, doing business under the firm name and style of Wing Bros., on the 22d of October, 1904, and that on that day plaintiff delivered and deposited with them for his use and benefit the sum of $100, and that thereupon defendants executed and delivered to plaintiff a duebill of that date, reading, "Due Daniel Cannon $100 for safe-keeping. [Signed] Wing Bros."; that plaintiff demanded payment of the money in July, 1906, but that the same had not been paid. Wherefore he prays judgment for the $100 and interest from July, 1906, at 6 per cent. The duebill referred to was filed with the statement. On a trial before the justice, judgment was rendered against the defendants, from which the defendant, Charles Wing, alone appealed to the circuit court of Lincoln county, entering into a bond with sureties. On trial before the circuit court and a jury, there was evidence tending to show that the defendants were engaged in the milling business, as partners, under the name of Wing Bros., and that plaintiff was working for them, and from time to time had deposited money at the mill; the partner who received it being William Wing. The duebill above set out was introduced in evidence, and the evidence tended to show that the money given by plaintiff to William was placed in a sack along with the cash of the partnership, as it was received. There was also...