Martin v. Fewell

• Decision Date: 31 October 1883
• Citation: 79 Mo. 401
• Parties: MARTIN et al., Appellants, v. FEWELL.
• Court: Missouri Supreme Court

79 Mo. 401

MARTIN et al., Appellants,

v.FEWELL.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Henry Circuit Court.--HON. F. P. WRIGHT, Judge.

REVERSED.

James P. Maginn for appellants.

Gantt, Fyke & Philips for respondents.

HOUGH, C. J.

This is an action of assumpsit, by plaintiffs as partners, against defendants as partners. There are three counts in the petition. The first is to recover judgment for goods alleged to have been sold by plaintiffs to defendants, March 30th, 1877, amounting to $553.89; the second count is for goods sold August 14th, 1877, amounting to $72.09; and the third is for goods sold October 9th, 1877, amounting to $422.40. In addition to the usual averments as to the sale and delivery of the goods, each count contains substantially the following allegations: That at the time of said sales the defendants were partners in the retail mercantile business in Calhoun, Henry county; that one M. Woods was the general agent of defendants, and was by them authorized to conduct, manage and superintend said business, to buy and sell goods and merchandise, and to do all things in and about said business as fully as if he were himself sole owner thereof, and to do all things usual and customary to be done by merchants carrying on that sort of business; that M. Woods, as such agent, and with the knowledge and approbation of these defendants, carried on said business under the name “M. Woods,” and the defendants had no other partnership designation; that prior to December, 1876, plaintiffs had had dealings with said defendants, and had sold and delivered to them goods and merchandise, through Woods as defendants' agent; that plaintiffs had at no time business transactions with Woods, in any other capacity than as agent for defendants.

The answer contains a general denial, and also alleges that the goods in the petition mentioned were sold and delivered by plaintiffs to the “Calhoun Grange Store Company,” a duly organized corporation of Missouri, and not to defendants; that the certificate of incorporation was duly filed in the recorder's office of Henry county, on the -- day of _____, 1876, and on May 8th, 1877, a similar certificate was filed with the Secretary of State, and on the same day the said secretary executed to said Calhoun Grange Store Company a certificate of incorporation as provided by law. The replication is a general denial of the new matter pleaded in the answer.

It appears from the testimony that the defendants, together with M. Woods, and others not sued, engaged in merchandising at Calhoun, Henry county, sometime in 1875; that they appointed a committee to organize a store, and subscribe money for shares; that M. Woods had $20 stock in the concern from the beginning; that it was to be incorporated and managed by a board of directors; that M. Woods was one of the first board of directors, and bought the stock and managed the store; that the understanding and intention of all the parties interested was, that they were to have been incorporated from the beginning, and that they paid in their money with that understanding; that in 1875, before they commenced business, a committee was appointed from their number to attend to their incorporation; but that it never reported; that they knew that M. Woods was buying and selling in their behalf so far as they were interested; that from time to time they were at the store and talked with Woods about the business; that they talked with each other from time to time about the business after it was commenced; that in 1876 the goods were invoiced by M. Woods and the directors, who announced a profit over the expenses, etc., and that the store was out of debt; that they could have had access to the books if they had so desired; that in June, 1877, the directors had a meeting at the store and invoiced the goods and called on M. Woods to show the condition of the business; that the books were examined; that they were in debt some; that they asked Woods how it came so, and he said he had to have more goods and had bought them on credit; that the directors took no action as to notifying creditors; that the store continued in operation and Woods continued in charge until the fire; that the results of the examinations made by the directors were communicated to the other stockholders.

The depositions of plaintiffs, Edward and John Martin, were read by plaintiffs, proving their partnership, the sale and delivery of goods to M. Woods, by their firm, for the store at Calhoun, in November, 1876; the payment therefor, partly on March 29th and the balance on June 7th, 1877, the sale and delivery to Woods of the respective bills of goods mentioned in the three counts of the petition; their non-payment; the keeping of the account on their books in the name of “M. Woods,” Calhoun, Missouri; that plaintiffs had never received any notification in any way, that Woods was agent for and buying goods for a corporation during the time of their mutual dealings. John Martin deposed that he sold goods to M. Woods in November, 1876, for the first time in behalf of his firm, taking his order at Calhoun; that on that occasion Woods told him that he was personally worth nothing, but was representing a grange store, buying goods for it; that a lot of farmers had put him there to attend to the buying for them, and that the concern was worth from $75,000 to $100,000, and was good, beyond any question; that this first sale was on four months' credit; that he had not at any time sold goods to Woods on his individual credit; that he sold to Woods twice afterward, in August, 1877, and October, 1877, the August sale at Calhoun and the October sale at St. Louis, all on the credit of four months; that nothing was said to him by Woods or by anybody else with respect to any change in the character of the concern at Calhoun, for which Woods was agent, at any time during the dealings testified to.

The defendants offered in evidence a certified copy of articles of association under the statute, authorizing the formation of corporations for manufacturing and business purposes, as recorded in the recorder's office of Henry county, by which it appears that certain of the defendants, associate themselves as a corporation to carry on a retail store at Calhoun, the name of the corporation being the Calhoun Grange Store Company; the capital stock $2,000, divided into 100 shares, of $20 each, the corporation to continue until January 1st, 1882. These articles were acknowledged by the signers thereof, September 9th, 1876, and were filed for record December 18th, 1876. Defendants offered the certificate of the Secretary of State of Missouri, of date May 8th, 1877, reciting the filing, by certain of the defendants, in his office, of a declaration in writing as provided in section 4, article 1, chapter 37, Wagner's Statutes, etc., and certifying that said parties have become a body corporate under the corporate name of “Calhoun Grange Store Company,” etc.

Defendants introduced M. Woods, who testified that he had informed one of the plaintiffs, John Martin, in the spring of 1877, that the store had been incorporated, and that he had offered to show him the articles of incorporation, and that Martin said it would make no difference. Max McCann also testified for defendants, fixing the date of the alleged interview between Woods and Martin as after the return of Woods from his March visit to St. Louis in 1877.

At the instance of the plaintiffs, the court gave the following instructions:

2. If the jury believe from the evidence that the plaintiffs were, prior to November, 1876, co-partners under the firm name of Edward Martin & Co., and so continued up to the time of bringing this suit, and that the defendants or some of them were, prior to said date, co-partners in the business of selling merchandise at Calhoun, Missouri, through their duly authorized general agent, M. Woods, and that Woods, as such agent, purchased and received the goods and merchandise sued for by the plaintiffs in the first count, and agreed to pay the prices therefor in the itemized account annexed to the same, and four months from March 30th, 1877, and that said goods have not been paid for, then the plaintiffs are entitled to a verdict for the amount of said account with six per cent interest thereon from the 30th day of July, 1877, to this date against the defendants who at the date of such purchase were co-partners in said business, unless the jury believe that such partnership had been dissolved prior to the date of said purchase.

7. With respect to the second and third counts of the petition, if the jury believe from the evidence that the plaintiffs Edward Martin and John Martin were co-partners prior to November, 1876, and so continued up to the time of bringing this suit, and that the defendants, or some of them were, prior to said date, co-partners in the business of merchandising, through their duly authorized general manager Woods, and that Woods, as such agent, purchased and received the goods and merchandise sued for in the second and third counts of the petition, and agreed to pay the prices there mentioned in the itemized account thereof annexed to the respective counts of the petition, and four months from the respective dates of said accounts, and if the jury believe that these goods have not been paid for, they will find a verdict on such counts for the amount thereof and six per cent interest thereon from the expiration of...