Lessing v. Sulzbacher

• Citation: 35 Mo. 445
• Parties: LESSING et al., Plaintiffs in Error, v. AARON SULZBACHER AND ARNOLD SULZBACHER, Defendants in Error.
• Decision Date: 28 February 1865
• Court: Missouri Supreme Court

35 Mo. 445

LESSING et al., Plaintiffs in Error,

v.AARON SULZBACHER AND ARNOLD SULZBACHER, Defendants in Error.

Supreme Court of Missouri.

February Term, 1865.

Appeal from Buchanan Common Pleas.

H. M. & A. H. Vories, for plaintiffs in error.

In order to prove the execution of the note plaintiff had a right certainly to prove that it had been executed by defendant, or by his authorized agent. In order to do so, he offered to prove that this note was executed by his partner (who was his agent) in the regular course of the partnership business and on partnership account; this tended to prove an authority to execute the note, or to prove the execution of the note by said defendant.

This evidence was excluded on the ground that no partnership was alleged in the petition. This was not material; we had alleged that they had executed the note by a certain description; we were not bound to set forth in our petition the means of evidence by which we proposed to prove the fact.

S. Ensworth, for defendants in error.

The court below committed no error in excluding the evidence offered on the part of the appellants. The plaintiffs offered the evidence for the purpose of establishing a partnership. When there was no partnership charged in the petition, the testimony was irrelevant. (33 Mo. 100.) If it was necessary to prove a partnership, a partnership should have been alleged, so that the respondent could have admitted it or taken issue on it. The note is made payable to Lessing, Mayer & Co.; the allegations in the petition are that the promise is to plaintiffs. The note does not show that the promise is to the plaintiffs jointly, or either of them, and the note was rightfully excluded.

BAY, Judge, delivered the opinion of the court.

This suit was brought upon a promissory note alleged in the petition to have been executed by the defendants, by the name and style of A. Sulzbacher, whereby they promised to pay, &c. Aaron Sulzbacher alone answers and pleads non est factum, alleging that the note is not his act and deed, and that he did not execute the same, nor was it executed by any person for him. Upon the trial of this issue, plaintiff offered in evidence several depositions tending to prove that at the time of the execution of the note, defendants were partners, doing business in the city of St. Joseph, under the name and style of A. B. Sulzbacher & Co.; and further offered to prove by competent witnesses, that defendants were engaged in the drygoods business; that...