Ellis v. Harrison

• Decision Date: 11 May 1891
• Citation: 16 S.W. 198,104 Mo. 270
• Parties: ELLIS v. HARRISON et al.
• Court: Missouri Supreme Court

16 S.W. 198

104 Mo. 270

ELLIS v. HARRISON et al.

Supreme Court of Missouri, Division No. 1.

May 11, 1891.

ACTIONS — PARTIES IN INTEREST — PARTNERSHIP AGREEMENT — PAROL EVIDENCE.

1. In Missouri, a person for whose benefit an express promise is made in a valid contract between others may maintain an action thereon in his own name.

2. The beneficiary of such a contract does not acquire a better standing to enforce it than that of a contracting party.

3. Where partnership articles provided that a firm should assume the "mercantile debts" of the then "jobbing business" of one of the partners, verbal evidence was admitted of contemporaneous acts and declarations of the parties, and of the opening entries in their firm books, to prove the sense in which those terms were used.

4. Where language of a written contract is ambiguous, the mutual construction given it by the parties is admissible to show their meaning.

5. The object of interpretation of instruments should be to reach the actual intention of the parties.

6. Where a party by instructions has submitted an issue to the trial court as one of fact, he cannot, on appeal, maintain that it should have been treated as an issue of law.

7. In a case where one judgment embodies a finding against plaintiff as to three counts of the petition, involving more than $2,500, and against defendant as to the fourth count, involving less than that sum, both parties appealing, the supreme court has jurisdiction to determine both appeals under the constitution of Missouri, art. 6, § 12.

8. The acceptor of a bill of exchange for accommodation of the drawer cannot (under Rev. St. Mo. 1889, § 522) maintain an attachment against the latter before maturity of the paper and before any payment on account thereof.

(Syllabus by the Court.)

Cross-appeals from circuit court, Jackson county; J. H. SLOVER, Judge.

Thomas Ellis, Sr., is plaintiff, and W. P. Harrison and Thomas Ellis, Jr., are defendants, in the action. Plaintiff presents four demands, stated separately. In his petition they appear thus: First count, for $3,900 and interest, represented by notes; second count, upon one note for $3,338.73 and interest; third count, upon one note for $800 and interest; fourth count, for money laid out and expended for the use of defendants. The notes on which the first three counts depend were all signed by Thomas Ellis, Jr., to the order of plaintiff; and the liability of the present defendants for them is alleged to arise out of the following facts: Mr. Ellis, Sr., and Mr. Ellis, Jr., his son, had a place of business at Kansas City, Mo., as partners, under the style of Thomas Ellis & Co., in the tobacco trade, prior to November 14, 1884, at which date that firm dissolved. By the terms of dissolution Mr. Ellis, Sr., sold his interest in the partnership effects, etc., to Mr. Ellis, Jr., who took the assets and proceeded with the business under the same name as that of the late firm. Mr. Ellis, Jr., did not pay cash for his father's interest, thus acquired, but gave his notes (at several months' time) therefor. Those are the notes on which the first three counts of the petition are based. After plaintiff received them from Mr. Ellis, Jr., the maker, the latter formed a partnership under the style of Harrison & Ellis, February 1, 1885, with W. P. Harrison, his co-defendant now. It is claimed that the latter is liable for these notes, by virtue of the contract creating the partnership of Harrison & Ellis. By its terms it was, among other things, agreed that in opening the books of Harrison & Ellis "the copartnership of Harrison & Ellis "the mercantile debts of the said present jobbing business of the said Thomas Ellis, Jr., shall be assumed by the firm of Harrison & Ellis." Plaintiff asserts that by reason of this stipulation between Mr. Ellis, Jr., and his co-defendant, Mr. Harrison, the latter became bound to plaintiff for the said notes of Mr. Ellis, Jr., given in November, 1884, to acquire the interest of Mr. Ellis, Sr., the plaintiff, in the old firm of Thomas Ellis & Co., because the notes so given constituted "mercantile debts" of the said "jobbing business" at the time Mr. Harrison came in, February 1, 1885. Defendant denies this contention. The first three counts of the petition, and the answer denying them, raise the issue above indicated. The fourth count is predicated upon an acceptance by plaintiff of a bill of exchange drawn by the defendants, April 14, 1885, for their accommodation, upon which the firm of Harrison & Ellis realized the proceeds before maturity. It appears that plaintiff was obliged to pay this draft at maturity in the sum of $360 to the use of defendants in consequence of his said acceptance, but after this action was begun. The allegations in this count were also denied by defendant. The cause was tried by the court without a jury. The result was a finding for one defendant, Mr. Harrison, on each of the first three causes of action. Mr. Ellis, Jr., made no defense, and hence findings were entered against him for the sums claimed in the three counts mentioned. On the fourth count the court found for plaintiff against both defendants to the amount of $411.66 (including interest.) After judgment accordingly, and the necessary motions and exceptions by plaintiff and Mr. Harrison, both of them appealed to the supreme court. The other material facts will appear in the course of the opinion.

Frank Titus, for plaintiff. H. N. Ess and Gage, Ladd & Small, for defendants.

BARCLAY, J., (after stating the facts as above.)

There are two appeals in this cause. That of the plaintiff will be first considered. It concerns the correctness of the findings and judgment in favor of defendant Mr. Harrison upon the first three counts in the petition. These causes of action are founded on debts in the shape of notes, which existed in favor of plaintiff from his son, Mr. Ellis, Jr., at the time when the latter and defendant Mr. Harrison formed the firm of Harrison & Ellis, February 1, 1885. By the partnership articles of the date last mentioned it may be conceded that the new firm assumed the "mercantile debts" of the then "jobbing business" of Mr. Ellis, Jr., and that thereby Mr. Harrison became liable (as a partner in Harrison & Ellis) for debts so assumed. If the plaintiff's demand, stated in the three counts mentioned, was a "mercantile debt" within the true intent and meaning of the contract containing that expression, then plaintiff could maintain an action thereon. In Missouri, a person for whose benefit an express promise is made in a valid contract between others may maintain an action upon it in his own name. Meyer v. Lowell, (1869,) 44 Mo. 328; Rogers v. Gosnell, (1873,) 51 Mo. 466; Fitzgerald v. Barker, (1879,) 70 Mo. 685, and the same case, (1884,) 85 Mo. 14 This proposition is now too firmly settled as part of the law of this state to require re-examination. Whether it is logically deducible from common-law principles (as has been sometimes doubted) it would serve no useful purpose now to consider. It has been accepted here, as in most of the American states, because it is supposed to furnish a useful rule in practice, tending to simplify litigation. By following it one action often effects the same results that two would be required to accomplish without it. Moreover, by our Code of Procedure it is provided that every action shall be prosecuted in the name of the real party in interest, with certain exceptions, — one of which is that the trustee of an express trust may sue in his own name. The statute then declares that such a trustee "shall be construed to include a person with whom or in whose name a contract is made for the benefit of another." Rev. St. 1889, §§ 1990, 1991. Reading these...