Columbia Brewery Co. v. Rohling

• Citation: 112 S.W. 767,133 Mo. App. 65
• Parties: COLUMBIA BREWERY CO. v. ROHLING et al.
• Decision Date: 06 October 1908
• Court: Court of Appeal of Missouri (US)

112 S.W. 767

133 Mo. App. 65

COLUMBIA BREWERY CO. v. ROHLING et al.

St. Louis Court of Appeals. Missouri.

October 6, 1908.

WITNESSES—COMPETENCY—TRANSACTION WITH DECEDENT — CORPORATIONS — "PARTY TO A CONTRACT."

Under Rev. St. 1899, § 4652 (Ann. St. 1906, p. 2520), excluding the surviving party to a contract from testifying after the other party's death to transactions had with him, in an action by a corporation on notes, it was improper to allow defendants to testify as to an agreement by the deceased agent of the corporation to cancel the notes; the term "party to a contract," as applied to a contract by a corporation, meaning the person who negotiated the contract, rather than the corporation.

Appeal from St. Louis Circuit Court; Jesse A. McDonald, Judge.

Action by the Columbia Brewery Company against H. Rohling and another. From a judgment for defendants, plaintiff appeals. Reversed and remanded.

Charles Fensky, for appellant. Muench, Walther & Muench, for respondents.

NORTONI, J.

This is a suit on a promissory note. It originated before a justice of the peace in the city of St. Louis, and found its way into the circuit court. The finding and judgment were for the defendants. Plaintiff prosecutes the appeal.

The evidence tended to prove that the defendants were partners, conducting a dramshop and grocery store in the city of St. Louis. On November 14, 1896, they borrowed from the plaintiff brewery company the sum of $300, for which they executed their joint promissory note, payable on demand, with interest at the rate of 6 per cent. They continued the saloon and grocery business about a year thereafter, at which time it appears the plaintiff brewery company, by its agent, one Harry Lange, induced them to dissolve the partnership, as the business was insufficient to support two families. The defendant Rohling retired from the business, and the same was continued by defendant Menke, his half-brother. It appears the plaintiff brewery company was in some manner interested in the saloon before and after the partnership was dissolved. The saloon sold plaintiff's brew of beer. One Harry Lange was the agent of the brewery company. He looked after their collections and adjusted the brewery company's business affairs with its customers in that section of the city. The defense interposed to the note is that it was settled by an arrangement between the defendants and Lange, the plaintiff's agent, as follows: That Rohling retired from the saloon and turned the business over to his half-brother, Menke, at the instance and request of Lange, who represented the Columbia Brewery Company, in an arrangement whereby the brewery company paid to him $200 and canceled his portion of the indebtedness represented by the $300 note in suit. Defendant Menke continued the business for several months, and finally, at the instance of the brewery's agent, Lange, executed a deed of trust to a representative of the company for the benefit of the plaintiff. Menke continued the business for about three months after this deed of trust was executed, when, at the request of Lange, he surrendered possession and turned over the entire business, fixtures, etc., to another patron of the plaintiff brewery company. The evidence tends to prove that, in consideration of the surrender of the business and turning over possession thereof to another csutomer of the brewery, Lange, the brewery's agent, agreed to cancel Menke's indebtedness represented by the note and all other indebtedness which he...