A. Graf Distilling Company v. Wilson
| Citation | 156 S.W. 23,172 Mo.App. 612 |
| Parties | A. GRAF DISTILLING COMPANY, Appellant, v. JOE T. WILSON, Respondent |
| Decision Date | 08 April 1913 |
| Court | Court of Appeal of Missouri (US) |
Appeal from Cape Girardeau Court of Common Pleas.--Hon. Robert G Ranney, Judge.
Judgment affirmed.
Davis & Hardesty for appellant.
(1) Partnership is the sole issue and strict proof thereof is not required of a creditor prevented by the alleged partner from showing the written agreement, all presumptions then being in support of the allegation of partnership. Block v Price, 24 Mo.App. 14; Pomeroy v. Benton, 77 Mo 64; Wigmore on Ev. Par., 278; 30 Cyc. 412; 16 Cyc. 1058. (2) If from the uncontradicted proof as to the contents of the writing a partnership arises by law, there should be a reversal and a directing of judgment for the admitted amount of plaintiff's claim. Paris Mfg. Co. v. Carle, 116 Mo.App. 581; Steckman v. Bank, 126 Mo.App. 664; Bank v. Altheimer, 91 Mo. 165; Buford v. Lewis, 112 S.W. 965; Dilley v. Abright, 48 S.W. 548. (3) A prima facie case of partnership was created by the provision for profit sharing; supported by the provision for regulating the business, and not rebutted by any provision indicating that the sharing was in the capacity of a creditor. 30 Cyc. 415; 22 Am. & Eng. Ency. Law (2 Ed.), 35, 36, 41; Bank v. Altheimer, 91 Mo. 190; Torbert v. Jeffrey, 161 Mo. 65; Nugent v. Armour Pkg. Co., 208 Mo. 498; Grocery Co. v. Berry, 58 Mo.App. 665; Steckman v. Bank, 126 Mo.App. 664; Tamblyn v. Scott, 111 Mo.App. 46; Swofford Bros. D. G. Co. v. Diment, 132 Mo.App. 616; Buford v. Lewis, 112 S.W. 963; Rosenfield v. Haight, 53 Wis. 260; Rahl v. Parlin, etc., Co., 64 S.W. 1007; Dilley v. Abright, 48 S.W. 548; Pooley v. Driver, 5 Ch. Div. (L. R.) 458; Purvis v. Butler, 87 Mich. 248 Poundstone v. Hamburger, 139 Pa. 319; Waverly, etc., Co. v. Hall, 150 Pa. 466; Johnson v. Rothschilds, 63 Ark. 518; Eager v. Crawford, 76 N.Y. 97; Plunkett v. Dillon, 4 Houst. (Del.) 338; Bank v. Hennessey, 48 N.Y. 553; Fertilizer Co. v. Reams, 105 N.C. 283; Cossock v. Burgwyn, 112 N.C. 304; Greenwood v. Brink, 1 Hun, 227; Powell v. Moore, 79 Ga. 524. (4) The agreement provided for defendant to share not as a creditor but as an owner, i. e., a partner. Bank v. Altheimer, 91 Mo. 190; Steckman v. Bank, 126 Mo.App. 665; Nugent v. Armour Pkg. Co., 208 Mo. 480; 30 Cyc. 352, 372, 383-384; Rahl v. Parlin, etc., Co., 64 S.W. 1007; Dilley v. Abright, 48 S.W. 548; Magovern v. Robertson, 116 N.Y. 61; Bank v. VanSlyck, 29 Hun, 188; Buford v. Lewis, 112 S.W. 963; Rosenfield v. Haight, 53 Wis. 260; Mason v. Partridge, 4 Hun, 621, 66 N.Y. 633; Burnett v. Snyder, 76 N.Y. 344; Eager v. Crawford, 76 N.Y. 97; Richardson v. Hughitt, 76 N.Y. 55; Parker v. Crawford, 37 Conn. 250; Sullivan v. Sullivan, 122 Wis. 326; Cook v. Carpenter, 34 Vt. 121; Stearns v. Haven, 14 Vt. 540. (5) Defendant should also be held as a partner by estoppel. 16 Cyc. 390-395. (6) The court erred in refusing plaintiff's 4th and giving defendant's 5th instruction. Monson v. Ray, 123 Mo.App. 1; Torbert v. Jeffrey, 161 Mo. 645; Nugent v. Armour Pkg. Co., 208 Mo. 480; 30 Cyc. 352, 360-361, 416; 22 Am. & Eng. Ency. Law (2 Ed.), 26; Dilley v. Abright, 48 S.W. 548; Griffin v. Carter, 21 A.D. 51, 165 N.Y. 621; Miller v. Bartlett, 15 Serg. & R. 137; Hart v. Kelley, 83 Pa. 286; Commercial Bank v. Miller, 96 Va. 357; Poundstone v. Hamburger, 139 Pa. 319; see also cases cited under points III and IV. (7) The court erred in declining to prohibit the leading questions propounded by defendant's counsel. Wigmore on Ev., Pars. 769, 773, 774, 909; Creighton v. Modern Woodman, 90 Mo.App. 378.
Ely, Kelso & Miller for respondent.
--This is an action by plaintiff corporation, appellant here, against one Joe T. Wilson, respondent in this court, seeking to hold the latter liable as a partner for an alleged partnership debt.
It appears from the evidence that on or about June 12, 1907, one Joe Goldbaum launched a retail liquor business in the city of Cape Girardeau under the name of the "Cape Liquor Company." That shortly prior thereto Goldbaum, desiring to enter into this business, and having no capital, induced the defendant Wilson and one John T. Sackmann to indorse notes for him to the amount of $ 1200 upon which money was procured from banks in order to conduct and carry on the business. It was agreed between the defendant and Sackmann on the one hand and Goldbaum on the other that, out of the profits of the business, payments were to be made on these notes by Goldbaum, as fast as money could be realized from the business therefor; and after the notes had been paid, the net profits were to be divided equally between him, Sackmann and the defendant. Goldbaum was to first pay the running expenses of the business, including fifty dollars per month to himself.
The business was conducted by Goldbaum under this arrangement until about September 3, 1907, at which time there was a further agreement between him, Sackmann and the defendant, whereby it was agreed that if Goldbaum would pay off these notes, and pay all debts contracted in conducting the business, defendant and Sackmann would not be entitled to any profit. Thereafter Goldbaum continued to conduct the business at the same place and under the same name until he went into bankruptcy. On August 5, 1908, he was adjudged a bankrupt, and the assets of the "Cape Liquor Company" were sold, realizing something like $ 500. Sackmann was also adjudged a bankrupt, with no assets, prior to the institution of this suit.
It appears that Sackmann and the defendant were each engaged in other business in the city of Cape Girardeau, and did not want their connection with the "Cape Liquor Company" or with Goldbaum known, whatever that connection was. They were not publicly known as having an interest in the business, their names were not used upon stationery of the conern nor apparently otherwise in connection with the business. Plaintiff's position, however, is that they were partners, and liable as such for the partnership debts.
The suit is for a liquor bill, for whiskeys sold to the "Cape Liquor Company" upon the order of Goldbaum, who was conducting the business. It appears that plaintiff's salesman, one Robert Cone, obtained the order from Goldbaum on June 5, 1907, shortly prior to the time that the "Cape Liquor Company" opened its place of business. It is claimed by Cone that Goldbaum was introduced to him by Sackmann upon the occasion of his taking this first order, but it is not contended that defendant was then present or that he had anything to do with it. Thereafter, from time to time, further quantities of liquor were shipped to the "Cape Liquor Company" by plaintiff on Goldbaum's order, up to and including January 16, 1908, at which time the total thereof furnished by plaintiff amounted to $ 1130.61. Various cash payments are credited on the account, and credit is given for certain liquors returned, the total credits being $ 757.55, leaving a balance due of $ 373.06, to recover which balance this suit is brought. The total amount credited upon the account is less by $ 92.36 than the total invoice price of liquors sold the Cape Liquor Company by plaintiff prior to September 3, 1907, at which date plaintiff claims that the defendant and Sackmann undertook to withdraw from the alleged partnership by the agreement of that date heretofore mentioned, and of which plaintiff had no notice.
The plaintiff called the defendant, Sackmann and Goldbaum as witnesses in its behalf, as well as Adolph Graf, president of plaintiff corporation, and Robert Cone, plaintiff's salesman. It appears from the evidence that there was perhaps an original written agreement between Goldbaum, Sackmann and the defendant, but if so it was not produced at the trial, neither was the agreement of September 3, 1907. It was attempted by plaintiff to have these papers produced. It is not altogether clear that the first existed, and it was claimed that none of the three alleged partners had any copy of the last agreement. Goldbaum testified that he was unable to find his copy of it; Sackmann testified that he had destroyed his copy; and Wilson testified that he did not know what had become of his, if he ever had one.
We shall not undertake to set out the evidence in detail by which the plaintiff attempted to show that the defendant had allowed himself to be held out as a partner in the business. There was very little testimony to this effect, beyond that of A. Graf, president of plaintiff corporation, and Robert Cone, plaintiff's salesman, much of which was incompetent, at least for this purpose. So far as the evidence tending to show an actual partnership between the three, it consisted mainly of the showing made, and which defendant admitted in testifying, that the defendant and Sackmann had indorsed Goldbaum's notes, and that they were to receive each one-third of the net profits, after the notes and running expenses had been paid.
The defendant offered no testimony and the cause was submitted to the jury upon six instructions given on behalf of the plaintiff and two on behalf of the defendant. One instruction requested by plaintiff was refused by the court. There was a verdict for the defendant, and after an unsuccessful motion for a new trial, and preserving exception to the overruling of said motion, the plaintiff has duly appealed to this court.
We may say at the outset that the evidence fell short of making out a case in which the defendant should be held liable as a partner by estoppel. The evidence fails to show that he permitted himself to be held out as a partner. On the contrary it appears that the defendant's connection with the enterprise and...
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