Hely v. Hinerman

Decision Date07 March 1924
Docket NumberNo. 23614.,23614.
Citation303 Mo. 147,260 S.W. 471
PartiesHELY v. HINERMAN et al.
CourtMissouri 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.

WOODSON, J.

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:

"My name is J. H. Hinerman; age, 50; occupation, contractor and builder for the Texas & Pacific Railway Company. In connection with my present occupation I am temporarily located at Marshall, Tex. I formerly resided in Springfield, Mo. Yes; I am acquainted with the Hinerman Construction Company. The Hinerman Construction Company is a partnership.

"Int. 6. Who compose the partnership members of the Hinerman Construction Company? Ans. 6. J. H. Hinerman, W. W. Coffman, C. S. Cope, and H. M. Smith.

"Mr. Luster: Defendant H. M. Smith objects to question No. 6 and answer because it calls for a conclusion and legal deduction of the witness and the answer is incompetent and of no probative value. (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): I am one of the partners. Smith and Coffman are at Springfield, Mo.; I think Cope is now at New Orleans, but I am not sure. The partnership of the Hinerman Construction Company was formed on July 27, 1917; when it was first formed J. H. Hinerman, W. W. Coffman, and C. D. Cope composed the partnership. At the time the partnership was entered into we three members had a written agreement; there were three copies of the original agreement signed up by the members, and each member retained a copy; I have a copy in my possession."

"Int. 18. You have stated that H. M. Smith afterwards became a member of the partnership doing business under the name of the Hinerman Construction Company. Please state as near as you can when H. M. Smith became a member of that partnership. Ans. 18. I think it was in March, 1918.

"Mr. Luster: Defendant objects to question and answer No. 18 because it calls for a conclusion and a mere deduction on one of the vital issues in the case, to wit: That Smith had become a member of the partnership and the answer thereto is a mere deduction or conclusion of the witness. One of the questions to be decided in this suit is whether or not there was any contract or agreement between Smith and the members of the Hinerman Construction Company whereby Smith became a equally in partner. This can be determined only by showing what that contract or agreement was, what was said and what was agreed to. Hence the question and the answer thereto are incompetent for the reason that it calls for a mere legal conclusion and has no probative value. Defendant moves that question and answer be stricken out. (Which objection and motion of defendant was sustained by the court and to which action of the court the plaintiff then and there duly excepted at the time.)

"Int. 19. I hand you a note dated May 8, 1918, signed by J. H. Hinerman, W. W. Coffman, and H. M. Smith, and ask you to state whether or not at the time that note was signed H. M. Smith was a member of the partnership doing business under the firm name of Hinerman Construction Company? Ans. 19. He was.

"Mr. Luster: Defendant objects to question No. 19 and the answer thereunder for the reasons covered by objections to question 18 and the answer thereto for the reason that it calls for a deduction and legal conclusion of the witness and has no probative value and is not competent under the pleadings in this case, and further objects because the instrument is not introduced in evidence, is not attached to the deposition. The question assumes that the instrument is signed by Hinerman, Coffman, and Smith when the instrument itself would be best evidence, and defendant moves that said question and answer be stricken out. (Which objection and motion of defendant was sustained by the court to which action of the court the plaintiff then and there duly excepted at the time.)"

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.

"This agreement made this 27th day of July, 1917, between J. H. Hinerman, C. D. Cope, and W. W. Coffman, all of the city of Springfield, county of Greene and state of Missouri, witnesseth:

"(1) The said parties hereby agree that they will become and be partners in business for the purpose and upon the terms hereinafter stated.

"(2) The firm name of the partnership shall be Hinerman Construction Company.

"(3) The business to be carried on by said partnership shall be that of promoting and constructing street paving.

"(4) The principal place of business of said partnership is to be in the city of Springfield.

"(5) The term for which said partnership is organized is five years from and after August 1, 1917.

"(6) That the said partners are to share equally in the profits and losses of said business.

"(7) Each of said partners is to give such of his time and attention to the said business as may be required, and is to use his utmost endeavors to promote the interests of the said firm; the said Hinerman shall have the management and superintendency of the business, the said Cope shall devote his attention to the promotion of paving contracts, and the said Coffman shall devote his attention to the negotiation of loans and the providing of the funds necessary to carry on said business.

"(8) All contracts shall be taken in the name of the Hinerman Construction Co.

"(9) Books of account of the transactions of said partnership shall be kept at the Farmers' & Merchants' Bank of Springfield, Mo., and shall at all times be open to inspection by any partner. Each partner shall cause to be entered upon said books a just and true account of all his dealings, receipts, and expenditures for or on account of said firm.

"(10) All questions of difference as to the management of the business shall be decided by a majority of said partners, and no partner shall knowingly do any act in relation thereto contrary to the decision of the majority.

"(11) Either of said partners may retire from said partnership at any time giving his said partners ten days' written notice of his intention to do so.

"(12) Upon dissolution of said firm by lapse of time or otherwise, the said business shall be wound up, the debts paid, and the surplus divided between the partners in accordance with their interest therein.

"In witness whereof, we have hereunto set our hands, the day and year first above written."

                                 "[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.

"I am the plaintiff. I reside at Cape Girardeau, Mo. I am engaged in the business of crushed rock. I am acquainted...

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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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