Hely v. Hinerman

• Decision Date: 14 January 1922
• Docket Number: No. 2678.,2678.
• Citation: 208 Mo. App. 691,236 S.W. 698
• Parties: HELY v. HINERMAN et al.
• Court: Missouri Court of Appeals

236 S.W. 698

208 Mo. App. 691

HELY v. HINERMAN et al.

No. 2678.

Springfield Court of Appeals. Missouri.

January 14, 1922.

Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge.

Suit by Edward Hely against J. H. Hinerman, W. W. Coffman, H. M. Smith, and C. D. Cope, a copartnership doing business as the Hinerman Construction Company. From judgment for defendant Smith, the plaintiff appeals. Affirmed, and certified to the Supreme Court.

Ward & Reeves, of Caruthersville, and V. O. Coltrane, of Springfield, for appellant.

Sam M. Wear and Lewis Luster, both of Springfield, for respondent.

FARRINGTON, J.

The plaintiff brought suit to recover for 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, Mo. 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 juridictions. 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, 105 S. W. 1106.

This brings us to the principal point at issue. The appellant contends that the trial court erred in excluding testimony offered by him in the nature of admissions and declarations made by Hinerman, of the firm of Hinerman Construction Company, which declarations and admissions were made at the time the goods were purchased from plaintiff, and tended to show that Smith, respondent here, had become a member of the firm of Hinerman Construction Company and was a full partner therein. It will be borne in mind in dealing with this question that there is no contention but what the Hinerman Construction Company was a partnership, and that Hinerman was one of the partners, with full authority to act for it. Neither is there any contention made that the partnership of Hinerman Construction Company purchased the material from the plaintiff and is indebted to the plaintiff for such sum. The only question concerning this issue was whether or not a partnership existed in which H. M. Smith was a member; that is to say, the question is on the existence of the alleged partnership between Hinerman, Coffman, Cope and Smith.

To sustain the issue that Smith was a member of this firm at the time the goods were purchased from plaintiff, the plaintiff's testimony tended to show that originally a firm composed of Hinerman, Coffman, and Cope was formed under the name of Hinerman Construction Company, and, as stated before, this is admitted by all the parties. Hinerman's testimony in this cause affirmatively shows that Smith came into the firm of Hinerman Construction Company as a partner to receive profits and bear losses and to share equably with the other partners in the partnership venture. This was the only direct testimony of an affirmative character which showed that Smith was a member of the firm. On the other hand, Smith and Coffman testified positively that Smith never became a member of the partnership, and that such dealings as he had with the partnership were merely done to accommodate the partnership, one member of which firm was Coffman, who was associated with Smith in the banking business. The case then stands in this wise: There is direct testimony offered by plaintiff that Smith was a member of the partnership at the time plaintiff sold the goods to the Hinerman Construction Company, or, as some courts put it, the plaintiff had made a prima fade case of the partnership alleged. The defendant's testimony flatly denied such relation. Now, the appellant contends that, under the authorities, he having introduced evidence of a direct character which made a prima fade case of the existence of a partnership between Smith and others, he was then entitled to introduce in evidence the declarations and admissions of Hinerman, who was acting for the Hinerman Construction Company at the time the goods were bought, which tended to show that Smith was a partner. In other words, plaintiff sought to show by various witnesses that Hinerman came to them at the time the goods were being purchased and told them "that H. M. Smith, of Springfield, Mo., had come into the partnership and was then a member of the firm. The theory of appellant is that, having put in evidence of an affirmative character making a prima fade case of the existence of a partnership, he was then entitled to bolster up and corroborate Hinerman's testimony to that effect by showing the declarations which had been made by Hinerman to plaintiff and other parties when the goods were bought. To sustain this contention, the appellant undoubtedly has one authority in Missouri directly in point, and with which we are not willing to agree, and that is the case of Oil Well Supply Co. v. Metcalf, 174 Mo. App. 555, 160 S. W. 897. In that case the Kansas City Court of Appeals upheld the modification of an instruction so as to cut out a direction to the jury that no declaration or act of Ross as to the existence of a partnership should be considered unless such act or declaration was within the knowledge or consent of the other alleged partners, and the court said:

"It is true you cannot prove that a partnership existed by the acts and declarations of the alleged partner. But if you first make out a prima facie case, as was done here, that a partnership exists, it is then proper, in corroboration, to show that he acted as such and stated that he was."

The cases cited to support that statement we will hereafter notice in this opinion.

One other case relied on by appellant to sustain his contention is that of Willoughby v. Hildreth, 182 Mo. App. 80, 93, 167 S. W. 639, a case disposed of in this court by the writer of this opinion, wherein we quoted with approval the language of the Metcalf Case, 174 Mo. App. 555, 160 S. W. 897. In the Willoughby Case, which we were determining, what was said was obiter dictum, as the case shows clearly that the case turned on the question of whether plaintiff there had made out a prima facie case, and we found that no such evidence existed in that record, and then followed the statement, as shown in the opinion, that acts and declarations would not be permitted to show the existence of a partnership except in corroboration of a prima facie case first made. We do not believe that the ruling as stated in the Metcalf Case is supported by the best authorities and does not stand the test of reason.

The general rule of law laid down concerning declarations and admissions of partners and agents is that admissions of a partnership's existence by one partner cannot be given in evidence against an alleged partner unless made in the latter's presence, or unless the latter authorized or assented to the admission or had adopted or ratified it. See 30 Cyc. 409. See, also, Clement Bates on Partnership, vol. 2, § 1151.

Greenleaf on Evidence, vol. 1, § 177, lays down the rule that, where it is sought to charge several partners, an admission of the fact of partnership of one is not receivable in evidence against another to prove the partnership. (Italics ours.) It is only after the partnership is shown to exist by proof satisfactory to the judge that the admissions of one of the parties is received in order to affect the others.

Wigmore on Evidence, vol. 2, § 1078, observes that it may be noted that the fact of agency must of course be somehow evidenced before the alleged agent's declarations can be received as admissions; and therefore the use of the alleged agent's assertions that he is agent would for that purpose be inadmissible, as...