Donk Bros. Coal & Coke Co. v. Aronson

• Decision Date: 17 November 1903
• Court: Missouri Court of Appeals
• Parties: DONK BROS. COAL & COKE CO. v. ARONSON et al.

77 S.W. 132

102 Mo. App. 590

DONK BROS. COAL & COKE CO. v. ARONSON et al.

Court of Appeals at St. Louis, Missouri.

November 17, 1903.

PARTNERSHIP—ACTIONS AGAINST—PLEADING —DENIAL OF PARTNERSHIP—SUFFICIENCY.

1. Under Rev. St. 1899, § 746, providing that a partnership need not be proved unless put in issue by the opposite party by affidavit filed with the pleadings, partnership may be put in issue by an answer, properly verified, denying its existence, without incorporating such denial in a separate paper and affidavit.

Appeal from St. Louis Circuit Court; Warwick Hough, Judge.

Action by Donk Bros. Coal & Coke Company against Jerome W. Aronson, Jacob Lippe, and others. From a judgment granting defendant Lippe a new trial after rendering judgment for plaintiff, plaintiff appeals. Affirmed.

John F. Green, for appellant. A. W. Tyler and Sale & Sale, for respondents.

REYBURN, J.

This, an action for balance of an account for goods sold and delivered, brought originally against four defendants, but dismissed as to one, proceeded to trial before the court as a jury. Defendants were sought to be charged as copartners under the firm name of Mound City Coal & Ice Company. Defendant Jacob Lippe, for separate answer, pleaded that he was not a partner with his codefendants under the partnership title, or at any time averred; that he was not a partner with said parties nor in the Mound City Coal & Ice Company in any manner or capacity during the time set forth; and that he never at any time or in any manner had contracted the debt sued on by plaintiff, and was not indebted to plaintiff; and this answer was verified by the affidavit of this defendant. The plaintiff offered evidence to establish the correctness of the account sued on, and rested without tendering any proof of the persons composing the alleged copartnership of the Mound City Coal & Ice Company. The defendant Jacob Lippe thereupon asked the following declaration of law: "The court declares the law to be that under the pleadings and evidence in this case they must find a verdict in favor of the defendant Jacob Lippe," which the court refused to give, and gave the declaration prayed by plaintiff thus: "The court declares the law to be that under the pleadings herein the partnership of Jerome W. Aronson, Henry Aronson, and Jacob Lippe is admitted as charged in plaintiff's petition, said copartnership not having been denied by affidavit filed with the pleadings in the cause." Defendant Lippe thereupon asked leave to file an affidavit to conform to the ruling of the court, which was as follows: "State of Missouri, City of St. Louis—ss. Jacob Lippe being duly sworn on his oath states, that he was not at any of the times stated in the petition in the above entitled cause, a member of any firm doing business under the name of Mound City Coal and Ice Company, and that he was not a partner with any of his co-defendants named in the petition in any manner at any time stated in the petition. Jacob Lippe"—which the court denied leave to file, and rendered judgment against all the defendants for the amount claimed, with interest accrued. Respondent Lippe alone filed a motion for new trial, which the court sustained, and plaintiff has appealed.

Section 746, Rev. St. 1899, inter alia, provides: "And where plaintiff or defendant sues or is sued as a corporation, and...