Hely v. Hinerman
| Citation | 260 S.W. 471,303 Mo. 147 |
| Decision Date | 07 March 1924 |
| Docket Number | 23614 |
| Parties | EDWARD HELY, Appellant, v. J. H. HINERMAN et al |
| Court | United States State Supreme Court of Missouri |
Appeal from Greene Circuit Court; Hon. Guy D. Kirby, Judge.
Affirmed.
Ward & Reeves and V. O. Coltrane for appellant.
(1) The trial court erred in excluding from the jury the answer of Hinerman fixing the date of March, 1918, when, as he states H. M. Smith became a member of the partnership. Also the answer of Hinerman to the effect that at the time Smith signed the note on May 8, 1918, Smith was then a member of the firm. (2) The court also erred in excluding the testimony of Hinerman that the members of the firm were Hinerman Coffman, Cope and Smith; also the same question and answer which was excluded by the court. This testimony was sought from one of the partners themselves, and a partner can testify as to who his co-partners were at a given date. 2 Bates on Partnership, art. 1158; 17 Am. & Enc. Law, 1323; Gates v. Manny, 14 Minn. 21; Walsh v Kelly, 42 Barb. 98; Atwood v. Meredith, 3 Miss. 635, 639; Greenleaf on Evidence, art. 177. (3) The court erred in refusing to permit witness Hinerman to testify that Smith told him at the time he made the partnership agreement to go back to Caruthersville and tell the creditors of the Hinerman Construction Company that he was now a partner and that they would have the money in a few days and would pay them. Supply Co. v. Metcalf, 174 Mo.App. 559. This testimony was most important and was certainly competent as proving a statement coming from Smith himself to the effect that the creditors could rely on him as a partner in the extension of credit and in the payment of bills of the construction company. (4) It was admitted by all the evidence in the case that Coffman and Cope were members of the partnership. The plaintiff offered in evidence certain correspondence between a creditor and Cope, in which Cope stated that Smith was a member of the partnership. (5) The same rules of evidence with reference to the competency of statements made by an agent is applicable to statements made by partners, because, in law, each partner is the agent of the other. There must be some independent testimony of agency or of partnership, before the declarations of the agent or partner become competent evidence against the principal or other partner. But when there is independent evidence of agency, that is, evidence other than that of the acts and declarations of the alleged agent, then the acts and declarations of the agent are competent, including the declarations that he was acting as agent in the particular transaction. Most of the authorities, including those from Missouri, make such declarations or statements competent in corroboration. Werth v. Ollis, 61 Mo.App. 401; Union Bank v. Wheat, 58 Mo.App. 11; Hill Bros. v. Bank of Seneca, 100 Mo.App. 230; Stave Co. v. Railway, 119 Mo.App. 502; Stenson v. Landcaster, 178 Mo.App. 346; Sumner v. Saunders, 51 Mo. 89; Peck v. Richie, 66 Mo. 114; 31 Cyc. 1655; 2 C. J. 939; 2 Wigmore on Evidence, sec. 1078; State ex rel. v. Henderson, 86 Mo.App. 490; Woodin v. Leach, 186 Mo.App. 278; Clark v. Admr., 26 Mo. 264; Meirs v. Buchter, 197 Mo. 68; Bergman v. Railway, 104 Mo. 77. The same rule which makes the acts and declarations of an agent competent against his principal, likewise makes the acts and declarations of one partner evidence against another partner when such acts and declarations are in reference to matters connected with the partnership business.
Sam M. Wear and Lewis Luster for respondent.
(1) The court did not commit error in refusing to permit Hinerman to testify that Smith was a "partner" in the Hinerman Construction Company. Or when he became a member of the "partnership" or if he was a member of the "partnership" when he signed a certain note, or in sustaining objections to any testimony along this line. Such testimony calls for mere legal conclusions and has no probative force in establishing the fact of partnership. Graft Distilling Co. v. Wilson, 172 Mo.App. 612; Ellis v. Brand, 176 Mo.App. 390; Whittling v. Schreiber, 202 S.W. 418; Brandon v. Distilling Co., 52 So. 641. (2) It was not error for the court to refuse to admit the letters, Exhibit "D" and "C." By all the rules these letters are incompetent. The case was dismissed as to Cope. So they were not competent as admissions against him. They were also incompetent because "hearsay" and because calling for legal conclusions. Authorities supra; Rimel v. Hayes, 83 Mo. 200; Burt Zaiser v. Claussen, 208 Ill.App. 378; Smith v. Hulett, 65 Ill. 495. (3) The court did not err in refusing to permit certain witnesses to testify that Hinerman (or Cope) stated to them that Smith was a partner or had agreed to go into the partnership, and the offer made by appellant was properly rejected by the court. These declarations as offered called for mere legal conclusions. Hearsay declarations of an alleged partner are not competent or admissible to prove the partnership as against another. Chamberlaine v. Fisher, 75 N.W. 931; Bank v. Leland, 25 So. 195; Dowzelot Co. v. Rawlins, 58 Mo. 77; Plumbing Co. v. Dittmer, 223 S.W. 818; Hardware Co. v. Williams, 154 Mo.App. 725; Robbins v. Ward, 111 Mass. 244; Shaw v. Jones, 66 S.E. 240; Graham v. Swann, 147 S.W. 11; 2 Clement-Bates on Partnership, sec. 1151; Mechem on Agency, sec. 100; 30 Cyc. 409. (4) Such declarations of an alleged partnership, testified to by another, are not admissible to prove partnership, even after the partnership is otherwise prima-facie established by competent evidence. "A thing cannot be evidence to corroborate which is not evidence of itself." Rimel v. Hayes, 83 Mo. 200; Filley v. McHenry, 71 Mo. 417; Smith v. Hulet, 65 Ill. 495; Gardner v. N. W. M. Co., 52 Ill. 367; Pierce Oil Co. v. Zinc Co., 98 Mo.App. 329; Bank v. Hall, 93 S. E. (N. C.) 981; Bank v. Dewitt, 31 P. 744; Henry v. Willard, 73 N.C. 35-42; Robins v. Willard, 6 Pick. (Mass.) 464; Walle v. Brown, 4 Wharton (Penn.) 365. (5) Such declarations offered simply to prove partnership or in further proof of partnership are to be distinguished from declaration offered after the partnership is established, which are in fact part of the res gestae verbal acts, or declarations which show that at the time he was doing the thing, such as buying the goods or making the contract, the party was acting for the partnership. Henry v. Willard, 73 N.C. 35-42; Dowzelot v. Rawlins, 58 Mo.App. 77; Robbins v. Ward, 111 Mass. 244.
Woodson, J. All concur; Ragland, J., in the result.
This suit was instituted in the Circuit Court of Greene County by the plaintiff against the defendants. The petition alleged that the defendants were co-partners doing business under the firm name of Hinerman Construction Company; that the plaintiff, between the dates of August 27, 1917, and August 1, 1918, at the special instance and request of defendants, sold and delivered to the defendants certain materials of the value and for the price of $ 1428, the items of which, as well as the dates when the various materials were sold and delivered, and the prices charged therefor, respectively, appeared from the bill of items and statement of the account attached to the petition, and marked "Exhibit A." The trial resulting in a judgment by confession against the defendant W. W. Coffman, and a judgment by default against defendant J. H. Hinerman. The defendant C. D. Cope, not being served, the case was dismissed as to him. The case went to trial before the jury as to the defendant H. M. Smith, who had filed an answer under oath denying that he was a partner with his co-defendants. The verdict and judgment was in favor of the defendant H. M. Smith, and this appeal was duly taken and prosecuted to this court by the plaintiff as to the defendant, H. M. Smith.
At the time set out in the petition and for some time prior thereto, the Hinerman Construction Company was engaged in constructing street paving in the city of Caruthersville, Missouri, the total amount of this work under the contract being nearly $ 100,000. The contracts for the work were taken in the name of J. H. Hinerman, because, as he testifies, it would not be legal to take the contracts in the name of the co-partnership. The plaintiff, Hely, furnished and charged to the Hinerman Construction Company cement and other materials which he sold to the Hinerman Construction Company to be used in the street work. There was no dispute at the trial as to the correctness of this account, but the only question was whether or not H. M. Smith was a member of this partnership.
The plaintiff introduced in evidence the deposition of J. H. Hinerman taken in Texarkana, Texas, in October 6, 1919. On direct examination he testified as follows:
Which objection was by the court sustained, and to which action of the court the plaintiff then and there duly excepted at the time.
Witness (continuing): ...
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