Ehrhardt v. Stevenson

• Decision Date: 19 November 1907
• Parties: EHRHARDT et al. v. STEVENSON.
• Court: Missouri Court of Appeals

106 S.W. 1118

128 Mo. A. 476

EHRHARDT et al. v. STEVENSON.

St. Louis Court of Appeals. Missouri.

November 19, 1907.

Rehearing Denied January 21, 1908.

1. PARTNERSHIP—LIABILITY OF PARTNERS.

An owner of a building and a showman and a third person agreed to form a partnership; the owner agreeing to furnish the building, the showman his time and experience, and the third person $5,000 in cash and his time. The third person was authorized to put the building in condition for the business. The agreement between the parties provided that the contract should not become operative until the third person paid his cash contribution. Held, that the parties were liable for the work done on the building, though the third person had not advanced the $5,000 to the firm.

2. SAME—EVIDENCE.

Where, in an action for work done on a building, it appeared that defendant, on agreeing to form a partnership, represented that the building was his property, and agreed that he would contribute the building for the firm business, it was proper to show that defendant was the true owner together with his statements, if against interest, in reference to the work done thereon.

3. TRIAL — EVIDENCE — REFUSAL TO PERMIT PARTY TO OFFER EVIDENCE.

It is error to refuse to permit a party to state what he expects to prove by a witness on objections to questions asked the witness being made.

4. WITNESSES — PRIVILEGED COMMUNICATIONS.

It is for the client, and not the attorney, to claim that a communication made by the client to the attorney is privileged, so that the attorney cannot testify thereto.

5. SAME — INCOMPETENCY — WAIVER.

Objection that a witness is incompetent is waived unless taken at the first opportunity, and a party cannot take the benefit of the evidence of an incompetent witness and at the same time object to evidence which is against him on the ground of incompetency.

Appeal from St. Louis Circuit Court; Moses N. Sale, Judge.

Action by William Ehrhardt and another against William Stevenson. From a judgment for defendant, plaintiffs appeal. Reversed and remanded.

Earl M. Pirkey, for appellants. Daniel Dillon, for respondent.

BLAND, P. J.

In the fall of 1903 Thomas R. Pullis and Thomas G. Scott were looking for a house, in the city of St. Louis, for amusement purposes, with the view of producing winter circuses and other amusements during the Louisiana Purchase Exposition. They were discovered by the defendant, William Stevenson, making an examination of No. 3,218 Olive street. Stevenson inquired what their business was, and why they were looking at the house. They informed him they were looking for a place to fit up for amusement purposes. After several consultations, under some kind of an arrangement with Stevenson, Pullis and Scott got possession of the house, and Pullis, in the name of the Auditorium Amusement Company, entered into a written contract with plaintiffs to furnish certain material, and make certain repairs on the building, and also to do some painting, for which they were to be paid the sum of $462.60. The contract was signed: "Auditorium Amusement Company, by Pullis, Secretary and Treasurer." Pullis also guaranteed payment of the contract price. Plaintiffs furnished the material and did the work, but were not paid, and brought suit against Pullis and Scott, as partners, doing business in the name of the Auditorium Amusement Company, and recovered judgment, but the judgment has never been paid. The present action was commenced before a justice of the peace, and was, in due course, appealed to the circuit court, where on a trial de novo plaintiffs were forced to take a nonsuit. Their motion to set aside the nonsuit proved of no avail, and they appealed to this court.

The ground upon which plaintiffs seek to hold defendant for the account sued upon is that he was a partner with Pullis and Scott in the amusement enterprise. Plaintiffs proved the account and stated as an excuse for not making defendant a party to the suit against Pullis and Scott that they did not know at that time he was a partner, and did not find it out until after judgment was rendered. Plaintiffs introduced Pullis as a witness, who testified in respect to the partnership that several conferences were had by himself and Scott with defendant in regard to the building and the amusement enterprise; that defendant told them he owned the building, but had put the title in the Empire Building Company to protect it from his creditors. Witness also said: "We talked about the amusement feature, and we submitted a plan, stating that we wanted to organize a corporate company or copartnership for amusement purposes, and we were looking at his building and he showed us through his building, took us through himself. * * * He said that he was perfectly willing to join in the transaction; that he owned the building; that he would give up possession of the building, and did give up possession of the building, and we went on with the enterprise." Witness further testified that the partnership was to be called the "Auditorium Amusement Company," which was afterwards done; that the agreement was that Scott, who was an old showman, was to contribute his time...