Interstate Coal Co. v. Gordon

• Decision Date: 06 December 1919
• Docket Number: No. 2508.,2508.
• Citation: 216 S.W. 783
• Parties: INTERSTATE COAL CO. v. GORDON et al.
• Court: Missouri Court of Appeals

216 S.W. 783

INTERSTATE COAL CO. v. GORDON et al.

No. 2508.

Springfield Court of Appeals. Missouri.

December 6, 1919.

Appeal from Circuit Court, Newton County; Charles L. Henson, Judge.

Action by the Interstate Coal Company against J. D. Gordon and H. B. Gordon, resulting in verdict for H. B. Gordon. From an order granting new trial, defendant H. B. Gordon appeals. Affirmed.

Jno. J. Wolfe and John B. Cole, both of Joplin, for appellant.

H. S. Miller, of Joplin, for respondent.

STURGIS, P. J.

The plaintiff sues to collect for coal sold and delivered to the alleged partnership firm of J. D. Gordon and H. B. Gordon. The whole controversy is with H. B. Gordon, who answered and denied under oath the alleged partnership. The defendant J. D. Gordon was in active charge of the retail coal and fuel business at Webb City, Mo., and the sole question is as to H. B. Gordon, who lived at Sheldon, Mo., being a partner in the business so as to be liable for this debt. The court submitted this issue to the jury under instructions given as to the law, and the jury found for defendant H. B. Gordon. Then the court granted a new trial for the specific reason that it had erred in giving instruction No. 3 at the request of said H. B. Gordon. This court is asked to reverse the order granting a new trial and to direct a judgment to be entered on the verdict.

The record shows that plaintiff sought to hold H. B. Gordon liable as a partner both on the theory that he and his brother, J. D. Gordon, were in fact partners in the retail fuel and feed business at Webb City, Mo., and on the theory that H. B. Gordon held himself out as a partner and permitted his brother to do so, thereby obtaining credit for the coal in question. The court at plaintiff's instance gave instructions on both these theories, and then at defendant's instance gave instruction No. 3, which it later held to be error, as follows:

"The court instructs the jury that the issue of partnership in this case as against the defendant H. B. Gordon devolves upon the plaintiff to prove affirmatively by the preponderance or greater weight of the evidence that such partnership did exist as alleged by the plaintiff, and that in making out such proof it is not competent for the plaintiff in this case to prove such partnership by declarations made by the defendant J. D. Gordon in the absence of the defendant H. B. Gordon, and that, unless you shall find and believe from the evidence that the defendant H. B. Gordon was in fact a copartner in business with the defendant J. D. Gordon at the time or times when the coal in question was sold as sued for herein, and that the plaintiff then had knowledge of such copartnership and sold the coal in question, relying upon the same, or unless you shall further find and believe from the preponderance or greater weight of the evidence that the defendant H. B. Gordon did in fact, by his words and conduct relating to and touching the business of buying and selling coal, hay, feed, etc., in Webb City, Mo., as disclosed by the evidence, hold himself out to the public as a member of the firm of Gordon Bros. at such place for the purpose of inducing the plaintiff and the public generally to extend credit to the said firm, then your finding will be in favor of the defendant H. B. Gordon."

This instruction must be and is in fact conceded to be wrong. If the defendant H. B. Gordon and his brother were in fact partners in the business at the time this coal was purchased and delivered then H. B. Gordon is liable as well as his brother, regardless of whether the vendor of such coal knew of and relied on such actual partnership in extending credit or not. If IL B. Gordon was in fact a partner in the business, that fact alone makes him liable, and plaintiff did not have to prove, as the instruction requires, that plaintiff...