Hely v. Hinerman
Decision Date | 07 March 1924 |
Docket Number | No. 23614.,23614. |
Citation | 303 Mo. 147,260 S.W. 471 |
Parties | HELY v. HINERMAN et al. |
Court | Missouri Supreme Court |
Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge.
Suit by Edward Hely against J. H. Hinerman, H. M. Smith, and others. From a judgment for defendant Smith, plaintiff appeals. Affirmed.
Ward & Reeves, of Caruthersville, and V. O. Coltrane, of Springfield, for appellant.
Sam M. Wear and Lewis Luster, both of Springfield, for respondent.
Statement.
This suit was instituted in the circuit court of Greene county by the plaintiff against the defendants. The petition alleged that the defendants were copartners 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 $1,428, 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 Vent 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 codefendants. 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, Mo., 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 copartnership. 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, Tex., in October 6, 1919. On direct examination he testified as follows:
The deposition mentioned contained many pages of this same class of testimony, with the same class of objections made thereto, and the rulings of the court were the same, so it will serve no good purpose to burden this statement with a repetition of them.
The plaintiff next offered in evidence the articles of copartnership before mentioned, dated July 27, 1917, and signed by J. H. Hinerman, W. W. Coffman, and C. D. Cope, which is in words and figures as follows
Exhibit B. "Articles of Partnership.
"[Signed] J. H. Hinerman "W. W. Coffman "C. D. Cope."
The testimony taken in a second deposition of Mr. Hinerman is in all material regards the same as that given by him in the first deposition taken, and the objections of counsel and the rulings of the court on the admissibility of same in evidence were the same as made regarding said first deposition.
Edward Hely testified in his own behalf as follows:
Direct Examination by Mr. Reeves.
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...not parties to suit are hearsay. Gordon v. Burris, 141 Mo. 602; Home Exchange Bank v. Koch, 32 S.W.2d 86, 326 Mo. 369; Hely v. Hinerman, 260 S.W. 471, 303 Mo. 147; Howell v. Sherwood, 242 Mo. 513. (3) respondents' holding that a letter offered in evidence does not prove itself, but that it ......
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... ... such evidence is inadmissible and is without any probative ... force if admitted without objection. Miller v ... Miller, 277 S.W. 922; Hely v. Hinerman, 303 Mo ... 147; Hely v. Hinerman, 208 Mo.App. 691; Wittling ... v. Schreiber, 202 S.W. 418; Ellis v. Brand, 176 ... Mo.App ... ...
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State ex rel. United Factories v. Hostetter, 36222.
... ... Gordon v. Burris, 141 Mo. 602; Home Exchange Bank v. Koch, 32 S.W. (2d) 86, 326 Mo. 369; Hely v. Hinerman, 260 S.W. 471, 303 Mo. 147; Howell v. Sherwood, 242 Mo. 513. (3) The respondents' holding that a letter offered in evidence does not ... ...
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