Haysler v. Dawson

• Decision Date: 09 January 1888
• Citation: 28 Mo.App. 531
• Parties: G. C. HAYSLER et al., Respondents, v. ANDREW J. DAWSON, Appellant.
• Court: Kansas Court of Appeals

28 Mo.App. 531

G. C. HAYSLER et al., Respondents, v. ANDREW J. DAWSON, Appellant.

Court of Appeals of Missouri, Kansas City.

January 9, 1888

APPEAL from Henry Circuit Court, HON. JAMES B. GANTT, Judge.

Affirmed.

Statement of case by the court.

This is an action in assumpsit for the recovery of various accounts for goods sold to the firm of Hamsel & Dawson the petition alleging that said firm was composed of one Hamsel and the defendant, doing business as partners. The first count was for goods so sold by the plaintiffs. The other counts were predicated of claims for goods so sold by other persons, which accounts were assigned to the plaintiffs.

The answer of Dawson admitted that plaintiffs were partners. It then alleged that the accounts sued on by plaintiffs as assignees, were not assigned to them for a valuable consideration; that they, in fact, belonged to the respective assignors, who had only formally assigned and transferred the same to plaintiffs to enable them to mass all the claims in their names in one action against the defendant. The answer also denied the copartnership between defendant and Hamsel.

The reply tendered the general issue.

The evidence tended to show that the accounts were just and due and that the goods were purchased by Hamsel, in the firm name. The evidence also showed that the accounts set out in all the counts, save the first, were assigned to the plaintiffs to enable them to maintain this one suit for the recovery of all the claims, and that any judgment obtained thereon by plaintiffs would enure to the use of the assignors.

Defendant then sought to introduce evidence to show that he was not in fact a partner of said Hamsel; that he had not contracted for said goods, nor had he authorized Hamsel to purchase the same. This evidence was objected to by plaintiffs for the reason that the petition alleged the existence of such partnership, and the answer of defendant was not supported by affidavit putting the fact of copartnership in issue. The objection was sustained, and defendant excepted. Thereupon the defendant offered to file an amended answer supported by the required affidavit putting in issue the fact of such partnership. On plaintiff's objection this offer was refused by the court, and defendant again excepted.

Verdict and judgment for plaintiffs, from which defendant has appealed.

MCBETH & LADUE, for the appellant.

I. The court below erred in refusing to allow defendant, Dawson, to verify answer at the commencement of the trial of the cause. It should have been permitted in the interest of justice and good conscience, and was an abuse of the discretion and power of the court, arbitrarily enforced to the detriment and injury of the defendant Dawson's interest in the premises. Rev. Stat., p. 610, sec. 3567; 21 Mo. 20; Thompson v. Moseley, 29 Mo. 477; 42 Mo. 101; 19 Mo 403, 57 Mo. 56; 49 Mo. 404; 51 Mo. 501; 53 Mo. 238; Weber v. City of Hannibal, 83 Mo. 262; 43 Mo. 301; 75 Mo. 482; Rev. Stat., secs. 3568, 3576, 3577.

II. The court below erred in refusing to permit the evidence of the defendant, Dawson, which tended to deny the alleged copartnership with Hamsel, and tending to show that he was not liable to plaintiffs, to go to the jury, for the reason that the failure of defendant, Dawson, to verify the answer is not declared by the statute (Sess. Acts Mo. 1883, p. 121) to be a confession of the copartnership, but simply absolves the party averring partnership from the necessity of proving it; in other words, it operates to make out a prima-facie case. But appellant submits that, notwithstanding he inadvertently omitted to verify his answer, he having explicitly denied the partnership therein, he should have been permitted to support his answer with proof. Klein v. Keyes, 17 Mo. 326.

III. The court below erred in receiving testimony against the objections of defendant, Dawson, tending to prove accounts set forth in the second, third, and fourth separate causes of action in plaintiffs' petition, and the liability of defendant, Dawson, on said counts, when it appeared, by the admission of plaintiffs, made in open court, at the trial of the cause, that plaintiffs did not own, or pretend to own, said accounts; that they had never paid for, or agreed to pay for, the same, and were not the real parties in interest. Rev. Stat., p. 592, sec. 3462. It is a question of fact as to who is the real party in interest in an action on an account which has been formally assigned to a third party, and only the real party in interest can maintain the action. Roberts v. Deverill, 20 Wis. 142; 14 Mo. 523. The plaintiffs in this case were not trustees of an express trust within the meaning of section 3463, Revised Statutes, as the pretended assignments under which they sue were absolute and unconditional, and no trust was created. The principle which applies to a holder or endorsee of negotiable paper is not applicable in a case like this.

IV. The court erred in overruling defendant's motion for a new trial, supported by affidavits showing the failure to verify answer to have been a pure mistake, naturally and innocently made; and plaintiffs being fully advised as to the character of the defence, could not have been prejudiced by allowing defendant to verify the answer at the trial.

V. The court erred in giving instructions and declarations of law to the jury, asked by plaintiffs, against objections of defendant, Dawson, the same being illegal and wrong.

VI. The court erred in giving judgment for plaintiffs against the defendant, Dawson, the same being contrary to law.

FYKE & CALVIRD, for the respondents.

I. The court properly refused to permit defendant to verify his answer, after the jury were sworn and the trial commenced. Section 3586 provides, " It shall be the duty of the courts to so construe the provisions of law relating to pleading, and to so adapt the practice thereunder, as to discourage, as far as possible, negligence and deceit, to prevent delay, to secure parties from being misled, to place the party not in fault as nearly as possible in the same condition he would be in if no mistake had been made, to distinguish between form and substance, and to afford known, fixed, and certain requisitions in place of the discretion of the court, or the judge thereof." By act of the legislature (Acts of 1883. p. 121) it is provided, " And where plaintiff or defendant sues or is sued as a corporation, and where plaintiffs or defendants sue or are sued as a partnership, and the names of the several partners are set forth in the petition or answer, it shall not be necessary to prove the fact of such incorporation or partnership, unless the opposite party put such fact in issue by affidavit filed with the pleadings in the cause." No affidavit denying the partnership had been filed, plaintiffs announced ready, relying upon the plain provision of the statute. To have permitted defendant to verify his answer after the jury were sworn and the trial commenced would have been an abuse of discretion, and would have compelled plaintiffs to take a continuance without their fault. The answer not being verified, the partnership stood admitted. Patrick v. Gas Light Co., 17 Mo.App. 462. The intent of the statute is, that parties litigant shall be notified in the manner therein prescribed that the partnership is denied. The answer not being verified was no legal notice that such an issue would be raised at the trial. Defendant having failed to verify his answer, plaintiffs were relieved of the necessity of proving the partnership. Klein v. Keyes, 17 Mo. 326. And if relieved of the necessity of making the proof in the first instance, defendant certainly could not be permitted to offer evidence to disprove that which plaintiffs were not required to prove. State to use v. Chamberlain, 54 Mo. 388. There was then no error in refusing to allow defendant to verify his answer, nor in refusing to admit his testimony, nor in the instruction of the court.

II. The court did not err in admitting testimony in the second, third, and fourth counts in the petition. The accounts therein sued upon were assigned to plaintiffs in due form. It was wholly immaterial whether plaintiffs gave anything or not. An indorsee for collection, or by way of gift, may sue in his own name. By the assignment plaintiffs were invested with the legal title to the claim sued on in the second, third, and fourth counts. Webb v. Morgan, 14 Mo. 428; Barns v. McMullins, 78 Mo. 260, 277.

PHILIPS P. J.

I. It is assigned for error that the court, on the conceded fact that plaintiffs were not the real owners for value of the assigned accounts, should have directed a verdict for defendant on those counts of the petition. The contention of appellant is, that the practice act requires actions to be brought in the name of the real parties in interest. Rev Stat., sec. 3462. It will be seen, however, that this very section makes an exception in favor of the right of action as in the succeeding section named. This section (sec. 2163) authorizes an executor, administrator, and a trustee of an express trust, to sue in his own name, without joining with him the person for whose benefit the suit is prosecuted. It has been the recognized practice in this state to bring suits just as was done in ...