Ellis v. Harrison
| Decision Date | 11 May 1891 |
| Parties | Ellis, Appellant, v. Harrison et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. 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 Missouri, 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 codefendant 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 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 codefendant, 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.
Reversed and remanded.
Frank Titus for appellant, Thomas Ellis, Sr.
(1) The trial court erred in overruling plaintiff's motion, requesting the sustaining of the attachment prior to going to trial on the merits. Green v. Craig, 47 Mo. 90; Cannon v. McManus, 17 Mo. 345; Hatry v. Shuman, 13 Mo. 547. (2) The court erred in admitting illegal evidence in behalf of defendant Harrison. Parol testimony will not be permitted to vary or change such partnership contract as against plaintiff. Carpenter v. Jamison, 75 Mo. 285; Jennings v. Brizadine, 44 Mo. 335; Bond v. Worley, 26 Mo. 253; Lone v. Price, 5 Mo. 101; Tracy v. Iron Works, 29 Mo.App. 342; Burges v. Badger, 124 Ill. 288; Langell v. Langell, 17 Oregon, 220-229; Adair v. Adair, 5 Mich. 204; 71 Am. Dec. 779; Melton v. Watkins, 24 Ala. 433; Cargill v. Corby, 15 Mo. 425; Everett v. Chapman, 6 Conn. 347; Coffing v. Taylor, 16 Ill. 457; Parkhurst v. Van Cortlandt, 1 John. Ch. 273; Martin v. Hamlin, 18 Mich. 364; Selden v. Myers, 20 How. 506; Henderson v. Mayhew, 2 Gill. 393; 1 Greenl. Ev. [14 Ed.] sec. 275. Under the pleadings and evidence plaintiff was entitled to recover against Harrison on all the counts in his petition. As to the first three counts, defendant's liability rests upon the stipulations in his partnership agreement for plaintiff's benefit, and his acts thereunder and the plaintiff's acquiescence therein. The defendant is absolutely bound. Rogers v. Gosnell, 58 Mo. 589; Cress v. Blodgett, 64 Mo. 449, 452; Burton v. Larkin, 36 Kan. 246; Shamp v. Meyer, 20 Neb. 223; McAdaras v. King, 10 Mo.App. 578; Tournade v. Methfessel, 3 Hun, 144; Fitzgerald v. Barker, 85 Mo. 13; State ex rel. v. Potter, 63 Mo. 212. The admission into a firm of a new partner is a sufficient consideration for his assumption of existing debts. Jones v. Bartlett, 50 Wis. 589; Shaw v. McGregor, 105 Mass. 96; 1 Addison on Contracts [3 Am. Ed.] sec. 109. (5) Much slighter testimony than that of plaintiff in this case is sufficient to prove an assumption by an incoming partner of prior existing debts. Cross v. Bank, 17 Kan. 336; Wheat v. Hamilton, 53 Ind. 256; Register v. Dodge, 61 How. Pr. 107; Rolfe v. Flower, L. R. 1 P. C. 27; Ex Parte Jackson, 1 Vesey, Jr. 131; Lindley on Partnerships [4 Ed.] p. 392. (6) While the partnership books are evidence against the partners, any discrepancies, irregularities or omissions therein are not competent as evidence to weaken or discredit the plaintiff's claim. Shackelford v. Shackleford, 32 Gratt. 481, 507; 2 Lindley on Part. [2 Am. Ed. Ewell] p. 537. (7) The phrase "mercantile debts" used in the partnership contract of defendants properly embraced the debts owing to plaintiff and sued on in this action. Jones v. Bartlett, 50 Wis. 589. (8) There is no ambiguity in the partnership agreement of defendants, and it was the duty of the court to properly construe it. Pearson v. Carson, 69 Mo. 550; Fruin v. Railroad, 89 Mo. 397.
Henry N. Ess and Gage, Ladd & Small for appellant, W. P. Harrison.
Error was committed by the court below upon this branch of the case as follows: First. The objection to the introduction of any testimony under the fourth count of the petition should have been sustained. Second. Plaintiff's fourth declaration of law should have been refused. Third. The declaration asked by defendant Harrison that there could be no recovery on the fourth count should have been given. Fourth. Under the pleadings and evidence the finding and judgment should have been for the defendants. There was no evidence to sustain the finding and judgment. The plaintiff accepted the draft in question for the accommodation of the defendants. He was, therefore, surety for them. The draft was dated April 14, 1885, was payable sixty days after its date, and matured June 16. The petition alleges that it was paid on or about June 14, 1885. The suit was commenced May 4, 1885. At that time the defendants were not the debtors of the plaintiff, nor did they become so until his payment of the draft. They owed him nothing due, or to become due. The surety's right of action only arises upon his payment of the debt. Until then he can do nothing and a right of action must be complete at the time the suit is commenced. The subsequent acquisition of the right -- as in this case, by the payment of the draft pending suit -- will not enable him to maintain an action brought before the right accrued. Until the plaintiff had paid this draft, no one possessed a right of action against the defendants on it, or on account of it, except the holder thereof, whoever he might be. Hearne v. Keath, 63 Mo. 84; Dennison v. Soper, 33 Iowa 183; Read v. Ware, 2 La. Ann. 498; Price v. Merritt, 13 La. Ann. 526; Todd v. Shouse, 14 La. Ann. 428; Black v. Zacharie, 3 How. (U.S.) 483; Benson v. Campbell, 6 Porter (Ala.) 455; Drake on Attachment [6 Ed.] secs. 27a, 28, and cases cited; Brandt on Suretyship, sec. 176.
Gage, Ladd & Small, for W. P. Harrison, respondent.
(1) All of the plaintiff's declarations of law were given, but the court found the facts against him. It found that the debts sued for were not "mercantile debts of the present jobbing business of Thomas Ellis, Jr.," and, under the rules of practice in this court, that finding will not be disturbed. Meyer v. McCabe, 73 Mo. 236; Fulkerson v. Mitchell, 82 Mo. 13; Handlan v. McManus, 100 Mo. 124. (2) The written statement number 3 was a contemporaneous writing relating to the subject-matter of the written contract, and was admissible in evidence upon that ground. Liebke v. Methudy, 14 Mo.App. 65; S. C., 18 Mo.App. 143. (3) Evidence of the circumstances under which a contract was made and the relations of the parties is admissible to aid in the ascertainment of its meaning. Lash v. Parlin, 78 Mo. 391; Edwards v. Smith's Adm'r, 63 Mo. 119; Lumber Co. v. Warner, 93 Mo. 374. (4) The subsequent acts of the parties under the contract, giving practical construction to its terms, may be shown by parol. Wolfe v. Dyer, 95 Mo. 551; Patterson v. Camden, 25 Mo. 13; Jones v. De Lassus, 84 Mo. 545.
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