Hely v. Hinerman
| Decision Date | 14 January 1922 |
| Parties | EDWARD HELY, Appellant, v. J. H. HINERMAN, W. W. COFFMAN, H. M. SMITH and C. D. COPE, a Co-partnership, Doing Business Under the Firm and Style Name of HINRERMAN CONSTRUCTION COMPANY, Defendants; H. M. SMITH, Respondent |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court of Greene County.--Hon. Guy D. Kirby Judge.
AFFIRMED AND CERTIFIED TO SUPREME COURT.
Judgment affirmed and cause certified to Supreme Court.
Ward & Reeves and V. O. Coltrane for appellant.
(1) We understand that it is conceded in this case that 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. We concede that there must be some independent testimony of agency or of partnership, as the case may be before the statements or declarations of the agent or partner becomes competent evidence against the principal or other partner, as the case may be. 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; Smith v. O'Briant, 181 S.W. 123; Sumner v. Saunders, 51 Mo. 89; Peck v. Richie, 66 Mo. 114; 31 Cyc. 1655; 2 C. J., page 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. (a) 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. So, when there is independent evidence of the partnership relation, then the statements and declarations of one of the alleged partners are always received in evidence against the others. Some of the authorities place the competency of such testimony upon the ground of res gestae, some upon the ground of verbal acts, and still others upon the ground of corroboration; but without regard to the reason of such admissions, such statements are nevertheless universally held to be competent. Campbell v. Dent, 54 Mo. 331; Rainwater v. Burr, 55 Mo.App. 468; Supply Co. v. Metcalf, 174 Mo.App. 560; Willoughby v. Hildreth, 182 Mo.App. 93; Huyssen v. Lawson et al., 90 Mo.App. 87; Kadie v. Kyle, 47 Mo. 345; 16 Cyc. 1031; 2 Modern Law of Partnership (Rowley), sec. 889, p. 1244; 2 Wigmore on Evidence, sec. 1078; 1 Greenleaf on Evidence (15 Ed.), sec. 112; (See note under this section); Greenleaf on Evidence, art. 177; Conlan v. Mead, 172 Ill. 13, 49 N.E. 720; Hunes v. O'Brian, 74 Ala. 64; Hilton v. McDowell, 87 N.C. 364; 2 C. J., 939.
Sam M. Wear and Lewis Luster for respondent.
(1) The court did not commit error in refusing to permit J. H. Hinerman to testify that H. M. 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; Wittling 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. See authorities under Point 1; 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 (app. abs. p. 35) was properly rejected by the court. These declarations as offered called for mere legal conclusions (See authorities under Point 1). 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; Mecham 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. Hays, 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. 981; Bank v. Dewitt, 31 P. 744; Henry v. Willard, 73 N.C. 35-42; Robins v. Willard, 6 Pick 464; Walle v. Brown, 4 Wharton 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. (6) The instructions Nos. 4 and 5 offered by the plaintiff were properly refused by the court. See argument. Farris and Rosekopf Instructions to Juries, sec. 73; Wiedeman v. Tobacco Co., 165 S.W. 1105. (7) The instructions Nos. B and C given at request of defendant correctly declared the law, and presented the case properly under the pleading, and evidence and followed the same theory as plaintiffs given instructions. See argument and authorities cited thereunder.
--The plaintiff brought suit to recover the material which he alleged was sold to the Hinerman Construction Company, a concern engaged in the paving business, and at the time these goods were sold was operating in paving streets in Caruthersville, Missouri. It is admitted that Hinerman, Coffman and Cope were members of the firm of Hinerman Construction Company.
The principal issue in this case, touching both questions of fact and law, was whether H. M. Smith, the respondent here, was a member of the firm of Hinerman Construction Company. The cause was tried in the circuit court of Greene county and a judgment rendered in favor of Smith, and it is from this judgment that the appeal is brought here.
The assignments made in the brief go to questions of error concerning the exclusion and admissibility of testimony, the giving and refusing of instructions, and particularly the exclusion of testimony which consisted of acts and declarations and admissions of one Hinerman, who was the active member of the firm of Hinerman Construction Company, engaged in paving the streets of Caruthersville, and the man who had the dealings with the plaintiff here concerning the materials which were bought for the Hinerman Construction Company.
We are convinced that the trial court committed no error in this case, but concede that the question of law which we will discuss in this opinion, is a close question, upon which there is a division of authorities not only in this State but in other jurisdictions. That other matters may be disposed of before touching that question, we are convinced that there was no error in refusing to permit J. H. Hinerman to testify that H. M. 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 the note. Rejecting such testimony at most would not be reversible error and the action of the court can be upheld on the ground that it called for legal conclusions. [See Ellis v. Brand, 176 Mo.App. 383, 158 S.W. 705.]
The instructions given in the case fairly present the issues to be determined. We find no reversible error in the instructions given on behalf of Smith. They merely tell the jury that in order that Smith be held they must find that he became a partner and became liable for material which was purchased by the Hinerman Construction Company after he came into the firm, the theory of plaintiff being that Smith was not originally a member of the firm but came in some time after it had been operating.
Appellant's two instructions which were refused and about which complaint is made, were merely precautionary instructions, resting largely in the discretion of the trial court, the refusal of which would not constitute reversible error. [Wiedeman v. St. Louis Taxicab Co., 182 Mo.App. 530, 165 S.W. 1106.]
This brings us to the principal point at issue. The appellant contends that ...
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