Hughes v. Ewing
| Decision Date | 23 April 1901 |
| Citation | 62 S.W. 465,162 Mo. 261 |
| Parties | HUGHES, Appellant, v. EWING et al |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. Edward L. Scarritt Judge.
Affirmed.
Waggener Horton & Orr, Chas. R. Pence, Claude Hardwicke and Elijah Robinson for appellant.
(1) The court improperly admitted evidence as to whether or not Ewing had ever demanded a settlement of his co-defendants prior to October, 1888. The right of plaintiff to recover did not depend upon whether Ewing ever demanded such settlement or had a right to demand such settlement. (2) The trial court improperly admitted in evidence the correspondence that passed between the defendants in October, 1888, and the certificate made by Ewing that McMillan had complied with his covenant that the car-works would be constructed. Said letters, as evidence, were incompetent, irrelevant and immaterial, and were simply hearsay evidence, created by defendants nearly two years after plaintiff's cause of action had accrued, and could in no way impair plaintiff's right to recover; and for the further reason that such correspondence was not written in the presence of plaintiff, and because such correspondence appears to have been only an attempt to put a legal construction on a written instrument, which did not meet with the approval of all parties to such instrument, and because the court can construe said written instruments better than the authors of such correspondence. (3) The court erred in refusing to give the first declaration of law asked by plaintiff. The relations of the parties in and to real estate purchased pursuant to, and held subject to, the agreements mentioned in said declaration of law, were such as would exist between parties by, or for whose benefit, real estate was purchased under such circumstances as are described in declaration of law 15, which was modified by the court and given, and, if the trial court had properly construed such agreements, it would have given said first declaration of law. Gouthwaite v. Duckworth, 12 East, 421; Richards v. Grinnell, 63 Iowa 44; Plunkett v. Dillon, 3 Del. Ch. 496; Hymen v. Peters, 30 Ill.App. 134; Wetmore v. Crouch, 150 Mo. 671; Mill v Sheibley, 68 Ga. 556; Hunt v. Erickson, 57 Mich. 330; Young v. Thrasher, 115 Mo. 222; Myers v. Field, 37 Mo. 434; Manhattan Brass Co. v. Sears, 45 N.Y. 800; Beecher v. Bush, 45 Mich. 188; Tyler v. Waddingham, 58 Conn. 375; Beauregard v. Case, 91 U.S. 134; Shulett v. Fairbanks, 40 Ohio St. 233; Sanfley v. Howard, 7 Dana, 367. (4) The court should have given declaration of law asked for by plaintiff, numbered 2, since the purchases were made pursuant and subject to the agreements in evidence. Gouthwaite v. Duckworth, 12 East, 421; Story on Partnership (2 Ed.), sec. 146; Bates on Partnership, sec. 157; Richardson v. Farmer, 36 Mo. 44; Ontario Bank v. Hennessy, 48 N.Y. 548; Bates on Partnership, secs. 443, 444 and 445; Morse v. Richmond, 97 Ill. 303; Rumsey v. Briggs, 139 N.Y. 323; Sage v. Sherman, 2 N.Y. 417. (5) The trial court erred in refusing to give declaration of law, asked by plaintiff, numbered 4. Sage v. Sherman, 2 N.Y. 417; Tyler v. Waddingham, 58 Conn. 387; Rumsey v. Briggs, 139 N.Y. 323; Woodward v. Winship, 12 Pick. 429; Morton v. Buell, 43 Mo. 113; Little v. Stettheimer, 13 Mo. 572; Beal v. January, 62 Mo. 434.
McKeighan, Barclay & Watts, and Lathrop, Morrow, Fox & Moore for respondents.
(1) Neither of the defendants, Roraback or McMillan, are liable on the notes in suit. First. Even if it were admitted (which it is not) that the contracts given in evidence established a partnership between the parties thereto, still this would not establish a general trading partnership. A general trading partnership must be established in order to give authority to one partner to execute notes either in the partnership name or in the name of the parties so executing them, or it must be shown that from the constitution or the particular purposes of the firm the power is necessarily or usually exercised. Deardorf, Admr., v. Thatcher, 78 Mo. 128; Story on Partnership, sec. 102a. Second. No person can be held as a party to a promissory note unless some word or words are used in the note furnishing evidence that the party who executed the note did not intend to bind himself, or if he did so intend, that he also intended to bind others. Sparks v. Dispatch Transfer Co., 104 Mo. 531; Farmers' Bank v. Bayless, 35 Mo. 428; Baker v. Bayless, 41 Mo. 275; Story on Partnership, sec. 1. Third. The power and authority of one partner to bind another by the execution of notes depend upon the principle of agency. Meehan v. Valentine, 145 U.S. 618, citing Beckham v. Drake, 9 M. & W. 79, 98; Wilson v. Whitehead, 10 M. & W. 503; Ernst v. Nichols, 6 H. L. Cas. 40. Fourth. A principal can not be held upon a negotiable promissory note made by an agent in his own name, and not disclosing on its face the name of the principal. Sparks v. Dispatch Transfer Co., 104 Mo. 531. Fifth. McMillan and Roraback were not present partners with Ewing, or with Ewing and Coburn, hence the doctrine of dormant partners (whatever that doctrine is) does not apply in this case. Again, the doctrine of Sparks v. Dispatch Transfer Co., supra, applies to such notes even as to a dormant partner. (2) In order to constitute a partnership there must be such a community of interest as empowers each partner to make contracts, incur liability, manage the whole business, and dispose of the whole property of the partnership for its purposes, in the same manner and with the same power as all the partners could do acting together. Bank of Osceola v. Outhwaite, 50 Mo.App. 124; Deyerle v. Hunt, 50 Mo.App. 541; Dwinel v. Stone, 30 Me. 384; Ashby v. Shaw, 82 Mo. 76; Donnell v. Harshe, 67 Mo. 170; Kellogg Newspaper Co. v. Farrell, 88 Mo. 594; Musser v. Brink, 68 Mo. 242; Campbell v. Dent. 54 Mo. 325; Thompson v. Holden, 117 Mo. 118; Farrand, Admr., v. Gleason, 56 Vt. 633; Pulliam v. Schimp, 100 Ala. 362; Holmer v. Railroad Corp., 5 Gray, 58; Darling v. Potts, 118 Mo. 506; Clark v. Sidway, 142 U.S. 682; McDonald v. Matney, 82 Mo. 364; Blair v. Schaefer, 33 F. 218, 149 U.S. 248. The following are cases which upon the fact in each particular case it was held that no partnership had been established: Roper v. Schaefer, 35 Mo.App. 30; Morton v. Wilson (Ill.), 31 N.E. 168; Demarest v. Koch, 129 N.Y. 218; Cochran v. Anderson, 83 Ky. 36. Second. If, by the terms of an agreement any time is to elapse or any act remains to be done or any fact must first occur before a right to share profits accrues, then the partnership does not exist in any event until such time has arrived, or such act has been performed or such fact has occurred. Lindley on Partnership, 20; Clifton v. Howard, 89 Mo. 192; Story on Partnership, sec. 27; Alfaro v. De La Horre, referred to in 3 Central Law Journal, 473. Third. If by any possibility the partnership idea can prevail in this suit, then it should be held that the payment by Ewing for the land bought was his contribution to the capital of the partnership. It is well established that the other members of a partnership or firm can not be held liable for the capital borrowed by the other partner to enable him to contribute his share. 1 Bates on Partnership, sec. 446; Burns v. Mason, 11 Mo. 469; Evans v. Winston, 74 Ala. 349; Ferson v. Monroe, 1 Foster (N. H.), 462; Elliot v. Stephens, 36 N.H. 311; McTinden v. Wentworth, 51 Wis. 170; Logan v. Bond, 13 Ga. 192; Matlack v. James, 13 N.J.Eq. 126; Pollock v. Williams, 42 Miss. 88; Witham v. Vanwurmer, 44 Ill. 525; Bank v. Sawyer, 38 O. St. 339; Valentine v. Hickel, 39 O. St. 19; Donally v. Ryan, 41 Pa. St. 306; Foster v. Branes, 81 Pa. St. 377; McNaughton's Appeal, 101 Pa. St. 550; Stebbins v. Willard, 53 Vt. 665.
On the twenty-ninth day of January, 1887, and for sometime prior thereto, the defendant William McMillan was the president of the Missouri Car & Foundry Company, a resident of St. Louis, Missouri, and engaged in the business of manufacturing and selling cars and doing a general foundry business. At the same time the company owned a branch plant in the State of Indiana, which McMillan had decided to move to some point in the immediate vicinity of Kansas City, Argentine, Kansas, being preferred, and to that end he communicated with his personal friend N. T. Spoor, who was then local superintendent of the Atchison, Topeka & Santa Fe Railroad Company, with the view of ascertaining at what price suitable land could be purchased for the purpose of locating said branch works. Spoor turned the matter over to the defendant Roraback, who communicated his object to defendant Ewing. Defendants Ewing & Coburn were then partners in the real estate business in Kansas City, and had been for sometime engaged in buying and selling lands for themselves and for others in and about said city, and were well posted with respect thereto. As a result of the communications between Ewing and Roraback, a meeting was arranged for between them and McMillan, at the latter's house in the city of St. Louis, on the twenty-fourth day of January, 1887, when the following contract was entered into between them, to-wit:
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