Harris v. McQuay

• Decision Date: 06 December 1927
• Docket Number: No. 19934.,19934.
• Citation: 300 S.W. 305
• Parties: HARRIS v. McQUAY et al.
• Court: Missouri Court of Appeals

300 S.W. 305

HARRIS v. McQUAY et al.

No. 19934.

St. Louis Court of Appeals, Missouri.

December 6, 1927.

Rehearing Denied December 20, 1927.

Appeal from Circuit Court, Ste. Genevieve County; Peter H. Huck, Judge.

"Not to be officially published."

Action by C. H. Harris against L. E. Mc-Quay and another. Judgment for plaintiff, and named defendant appeals. Reversed and remanded.

Judson, Green & Henry, of St. Louis, for appellant McQuay.

P. S. Terry, of Festus, for respondent.

DAUES, P. J.

This is an action for damages for breach of warranty, involving the sale of an automobile. Plaintiff recovered against both defendants, and the defendant L. D. McQuay has appealed.

The petition alleges that plaintiff is a resident of Jefferson county, Mo.; that he made a contract with defendants whereby he agreed to transfer to them one Cadillac automobile and $1,000 for a Moon automobile, which, it is alleged, was owned by both of the defendants. It is then alleged that the defendants warranted and guaranteed that the Moon au" tomobile was in first-class condition, and possessed certain other specified qualities. The petition proceeds upon the hypothesis that the defendants were joint owners of the second-hand Moon automobile traded in, and plaintiff thus sued them as joint makers of the guaranties and warranties alleged to have been given at the time of the sale or trade. It is alleged that plaintiff was damaged in the sum of $1,500 by reason of the breach of the contract.

Defendant Miller filed no answer, and judgment went against him by default. Defendant McQuay appeared specially at the return term of the Jefferson county circuit court, and filed a plea to the jurisdiction of that court over him, alleging that he was a resident of the city a St. Louis; that he was the sole owner of the second-hand car sold plaintiff; that defendant Miller was merely his agent, and that this fact was disclosed and known to plaintiff at the time; that Miller had been made a defendant in the action through collusion between him and plaintiff for the fraudulent purpose of bringing defendant McQuay into the Jefferson county jurisdiction; that Miller at the time did not reside in Jefferson county, but that he had voluntarily gone there through a collusive agreement with plaintiff in order to enable plaintiff to obtain jurisdiction over Mc-Quay. Thereafter defendant McQuay, who is appellant here, served notice upon the plaintiff that he would take depositions in said case in support of his plea to the jurisdiction, and under this notice the deposition of plaintiff was taken, but only upon the issue made by the plea to the jurisdiction.

This is the second appeal in this case. When the case came to trial the first time in the circuit court of Jefferson county, there was a verdict for plaintiff. The defendant McQuay being given a new trial by the lower court, there was an appeal by plaintiff to this court. See Harris v. McQuay (Mo. App.) 242 S. W. 1011. This court sustained the order granting a new trial. When the case went back, there was a change of venue by plaintiff to Ste. Genevieve county, where the case was again tried, resulting in a verdict for plaintiff.

In order to appreciate the points now made, we must refer somewhat to both trials.

At the first trial McQuay moved the court to give him a separate trial on his plea to the jurisdiction, which was overruled. Thereupon this defendant, after saving his exceptions, filed an amended answer, which set up his plea to the jurisdiction in the same manner as set up before, and also pleaded to the merits by a general denial. On the second trial, the one we are now reviewing, Miller again made default, and the defendant McQuay again asked the court for a separate trial upon his plea to the jurisdiction, requesting that be determined before trying the case on the merits. Again the court refused to grant such separate trial on the plea to the jurisdiction. This was again excepted to.

In the trial of this case defendant Miller was not a witness, but the plaintiff testified that Miller told him at the time of the trade that Miller and McQuay were joint owners of the car; that is to say, that Miller had a trading interest in it. This was objected to by McQuay, and, as we understand this record, the court allowed the evidence to go in so far as Miller was concerned, but held that the statements were inadmissible as against McQuay. Then the court permitted plaintiff to testify as to what Miller told him about the guaranties and the warranties so as to bind McQuay either as a partner or, at best as principal, which latter theory, however, was not in the case as pleaded.

The sole evidence in the case supporting the pleading that Miller and McQuay were co-owners comes from the lips of plaintiff as having been told him by one of the alleged co-owners. On the theory of partnership, then, there is no evidence in the record as against McQuay, because the statement of one partner made to a witness who testifies to such fact is not admissible to bind the other partner to the extent of being competent proof of partnership. See Mansfield v. Howell, 218 Mo. App. 557, 279 S. W. 1058. Indeed, it is the law that, while agency cannot be proved by the declaration of the agent made to a witness, it can, however, be proved by the testimony of the agent himself. Russell v. Wyant, 214 Mo. App. 377, 253 S. W. 790. However, with the latter principle we are not here concerned.

This record discloses no evidence whatsoever that could be competently admitted which would show that McQuay owned this car in partnership with Miller. The only place that this proof crept into the record is through the testimony of plaintiff as to what Miller had told him in that...