Hodel-Mutti Manufacturing Co. v. Ham
| Decision Date | 22 May 1905 |
| Citation | 87 S.W. 608,112 Mo.App. 718 |
| Parties | HODEL-MUTTI MANUFACTURING CO., Respondent, v. W. D. HAM, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Moniteau Circuit Court.--Hon. James E. Hazell, Judge.
REVERSED AND REMANDED.
Cause reversed and remanded.
R. M Embry for appellant.
(1) This judgment must stand or follow the questions of whether Walter S. Ham was a member of the firm of Ham & Ham, or if not was he their agent. No one pretends to say he was a member of the firm but all of the evidence is to the contrary. No one pretends to say he was their agent or that any act of W. S. Ham was ratified and made binding on the company. The judgment against the defendant, W. D. Ham is absolutely without evidence to support it. Bank v Hainlain, 67 Mo.App. 483; Woolner v. Levy, 48 Mo.App. 469; Powell v. Powell, 23 Mo.App. 365; Hamilton v. Marks, 63 Mo. 167; Bank v Schoen, 56 Mo.App. 160; Mayes v. Robinson, 93 Mo. 114; Morgan v. Durfee, 69 Mo. 469; Powell v Railroad, 76 Mo. 80; Ruchenbach v. Ellere, 115 Mo. 588. (2) Instruction numbered 3 asked for by plaintiff told the jury, that it had been shown that Walter S. Ham was the agent of the firm of Ham & Ham. Of course this assumption of fact, especially where there was absolutely no evidence to warrant the assumption is erroneous. The language of the instruction is, "showing the acts and conduct of the firm of Ham & Ham, or of their agent shown to be such by the acknowledgment and ratification of the acts of Walter S. Ham. Wilkerson v. Eilers, 114 Mo. 245; Harrison v. White, 56 Mo.App. 175. (3) You can not sue a partnership on a partnership account and recover in the same action, both on the partnership account and on the individual account of one member of the firm. Moreover the verdict of the jury was for the plaintiff, naming the amount, the defendant was the firm of Ham & Ham, composed of W. D. Ham and W. S. Ham, but the judgment as written singled out one member of the defendant firm and rendered judgment against him.
Moore & Williams for respondent.
(1) The finding of the jury was abundantly justified by the evidence. W. D. Ham as one of the partners of Ham & Ham was individually responsible for the firm's debts. It is an unquestionable principal of law that a partnership debt is the individual debt of any one of the partners. R. S. 1899, secs. 889, 892. A plea of abatement would not lie. Oldham v. Henderson, 4 Mo. 295. (2) Mr. W. D. Ham is now estopped from denying, that he is legally responsible for the account sued on, the agency of Walter Ham was fully proved by the habit and course of business of Ham & Ham. Watkins v. Edgar, 77 Mo.App. 148; Bonner v. Lisenby, 86 Mo.App. 666-670; Gibson v. Zerbry, 24 Mo.App. 67; Sharp v. Knox, 48 Mo.App. 170 and citations; Mechem on Agency, sec. 86. (3) The instructions taken together are favorable to appellant. (4) The appellant calls special attention to instruction 3. The instruction may be obscurely expressed, but taken in connection with the other instructions the sentences emphasized, simply leaves it to the jury to say whether it is shown by the evidence that the acts of Walter S. Ham as their apparent agent, were ratified. The comma is left out before the word shown. A case will not be reversed for obscurity or inaccuracy of expression or for harmless error. Swanson v. Sedalia, 89 Mo.App. 121; Danford v. Sedalia, 103 Mo. 172.
The plaintiff sued in a justice's court on an account against defendants and recovered judgment, from which defendant appealed to the circuit court where judgment was again rendered against the latter from which he appealed to this court. The work and materials included in the account sued on were furnished upon the order of Walter S. Ham, who was shown not to be a member of the firm, although sued as such.
The plaintiff introduced evidence tending to show that the said Walter was the agent of the defendant firm; and the defendant introduced evidence tending to show that he was not such agent and that the account was made by the Jack Mining company. Defendant contends that there was no evidence that Walter S. Ham was the agent of the firm, and that for that reason the court should have given his demurrer to the evidence. But there was evidence that for other work done on the order of Walter S., and charged to the firm of Ham & Ham, the latter paid the bill. It is true that the evidence in that respect was not strong, but we are not authorized to weigh the testimony, as it tended to show agency. At the instance of plaintiff the court instructed the jury as follows:
"The jury are instructed that they will take into consideration all the facts and circumstances in this case showing the acts and conduct of the firm of Ham & Ham, or of their agent shown to be such by the acknowledgment and ratification of the acts of Walter S. Ham and the ownership of this...
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