Gates v. Watson

• Citation: 54 Mo. 585
• Parties: J. C. GATES, et al., Appellants, v. R. E. WATSON, et al., Respondents.
• Decision Date: 31 January 1874
• Court: Missouri Supreme Court

54 Mo. 585

J. C. GATES, et al., Appellants,

v.R. E. WATSON, et al., Respondents.

Supreme Court of Missouri.

January Term, 1874.

Appeal from Jackson Circuit Court.

Karnes & Ess, for Appellants.

I. The evidence in this case has just as much tendency to prove a partnership as in the case of Rippey vs. Evans, 22 Mo., 157.

II. It was not necessary to allege a partnership in plaintiffs' petition. (See vs. Cox, 16 Mo., 167; Lessing vs. Sulzbacher-35 Mo., 445; Smith vs. Cook, 31 Md., 174-5; Barry vs. Taylor, 1 Pet. 316-7; [Opinion of Chief Justice Marshall] Collyer Partn., § 715; Pars. Partn., 178.)

J. Brumback and Gage & Ladd, for Respondents.

I. The court committed no error in refusing to permit the witness Kendall to answer the question, “state whether you sold these goods on the faith of Watson's representations to your firm, that he and Huskins were going in with Hanway.” The representation was that defendants were going in with Hanway; not that they were in, or were partners; the representation at most, was nothing more than that of a prospective partnership. The goods were sold to Hanway, charged to Hanway, Hanway's note taken for them; a settlement of the claim attempted to be made by these plaintiffs in conjunction with other creditors by acceptance of a deed from Hanway to be followed by a release from the debt, and finally, the note was proved as a claim against the estate of Hanway in bankruptcy.

II. The proof did not make out the case stated in the petition. The petition counted on a sale of goods to the defendants, Watson and Huskins alone. The proof offered was of a sale to an alleged partnership composed of Watson, Huskins, and Hanway and not of the case stated nor any part of it. The case pleaded was a transaction to which Hanway was not a party. The case proved, was at best, a transaction to which Hanway was ostensibly, and on the face of it, the only party on one side.

In a case of this nature, when the fact of a partnership must be proved to warrant a recovery, that fact is essential and must be pleaded. The fact is not mere evidence, that should not be pleaded, but the substantive ground of recovery to be established by the evidence. To tolerate the omission of such an essential fact from the petition, would put it in the power of a plaintiff to set traps for a defendant, and lead to great abuses. (Jones vs. Fuller, 38 Mo., 363; Forrester vs. Kirkpatrick, 2 Min., 210; Irvine vs. Myers, 4 Minn., 229.)

III. Having with full knowledge of all the facts, dealt with and trusted and given credit to Hanway alone, they could not as a matter of law on the facts proved recover against defendants below. The Circuit Court rightly ruled that no case was made out by the evidence. (Farmers' Bank vs. Bayless, et al. 35 Mo., 428, and authorities cited therein.)VORIES, Judge, delivered the opinion of the court.

This is an action to recover the price of goods alleged to have been sold and delivered by the plaintiffs to defendants. The petition states that the plaintiffs were partners, and as such sold and delivered goods to defendants; and is in the usual form. The answer of the defendants fails to deny that the plaintiffs were partners, but denies all other allegations in the petition, a trial was had before a jury. On the trial the evidence tended to prove that plaintiffs were partners engaged in selling boots and shoes in Kansas City, Mo.; that in the fall of the year 1868, defendants were engaged as partners in the dry goods business at Wyandotte, in Kansas; that at said time one S. B. Hanway came to the store of plaintiffs and wanted to purchase goods of the plaintiff on credit; that the plaintiffs refused to sell Hanway goods on credit; that Hanway applied to plaintiffs at different times to purchase goods on credit, but that plaintiffs positively refused to sell. The plaintiff then offered to prove a partnership between the defendants and S. B. Hanway. This evidence was objected to by the defendants on the ground that no such partnership was charged in the petition. The court admitted the evidence of partnership, subject to be passed on and determined by instructions to be given by the court at the conclusion of the plaintiffs' evidence. It was then shown by the evidence that the goods sued for were sold by plaintiffs at the time and for the price named in the petition; that the charge made in the books for the goods was made against Hanway; that after plaintiffs refused to sell goods to Hanway, defendant Watson came to plaintiffs' store and said to plaintiffs that he and Huskins were going in with Hanway and were going to take the goods down to the Indian country to trade for cattle and stock, and that it would be all right. Watson said they were going to take the goods by teams to the Indian country; that Hanway was an old experienced cattle trader; that Huskins was going along with him to do the financeering; that the cattle were to be sent up to Kansas City and that he, Watson, was to have the management at that end of the line, and sell the cattle.

The witness was then asked whether he had sold the goods on the faith of Watson's representations, that he and Huskins were going in with Hanway. This question was objected to and excluded on the ground that it was immaterial and irrelevant, and the plaintiffs excepted. The witness then stated that the goods were delivered to Hanway loaded in wagons and hauled off; that he never personally demanded payment for the goods of Watson and Huskins, or presented them the account. It was further proved, that at the time these goods were sold, Hanway was indebted to plaintiffs on an old account; that defendant Watson, afterwards paid them five hundred dollars on Hanway's old account; that after the talk with Watson the goods were sold and delivered to Hanway, and that plaintiffs took Hanway's note for the price of the goods and afterwards proved up said note against Hanway's estate in bankruptcy, and that Hanway was at that time in the State of Texas; that Watson has been residing in Kansas City since the sale of these goods, that no account has been made out against defendant for these goods until the account was made out for the purpose of bringing this suit; that Hanway had conveyed a tract of land in Kansas to plaintiff Gates, for the benefit of plaintiffs and other creditors.

One E. A. Phillip testified that in the fall of 1868, he was a member of the firm of Plant & Co. in ...