Meader v. Malcolm
| Decision Date | 31 October 1883 |
| Parties | MEADER v. MALCOLM, Appellant. |
| Court | Missouri Supreme Court |
Appeal from Phelps Circuit Court.--HON. H. V. B. HILL, Judge.
AFFIRMED.
L. F. Parker for appellant.
E. Y. Mitchell for respondent.
This is an action on a promissory note for $500; and the petition, which is in usual form, alleges the execution and delivery of the note by defendants as partners under the firm name of Demuth & Malcolm.
Defendant Demuth made default, and defendant Malcolm answered, denying the execution of the note in suit in the firm name of Demuth & Malcolm, admitting defendants were, on the 8th day of June, 1878, a firm doing business in Rolla, Missouri, under the firm name of Demuth & Malcolm, and pleading that the note in suit was executed by Demuth in the firm name, in fraud of the rights of the firm and of the defendant Malcolm, without his knowledge, consent or authority; that no consideration moved either to the firm or defendant Malcolm, but the sole consideration for said note was the payment of a private debt due from Demuth to plaintiff, and was executed, not for the purposes of the co-partnership, but for Demuth's private debt and in payment thereof, and that plaintiff knew of all said facts. To this answer there was no replication.
On the trial of the cause plaintiff had judgment, from which defendant Malcolm has appealed to this court, and assigns among other errors the action of the court in refusing to instruct the jury that under the pleadings and evidence the plaintiff could not recover against defendant Malcolm. It is insisted that the above instruction should have been given, because no replication having been filed to the answer of defendant Malcolm, the facts therein stated were admitted. This position is overthrown by the case of Henslee v. Cannefax, 49 Mo. 295, where it was held that where a case had been tried as if a replication had been filed, and the evidence closed, it was error for the trial court to instruct the jury that the allegations of new matter contained in the answer must be taken as true for want of a replication.
But two witnesses were examined, viz., defendant Demuth, on the part of defendant Malcolm, and plaintiff in her own behalf. The note sued upon was read to the jury and was prima facie binding upon the firm, and to rebut this Demuth was examined as a witness. His evidence tended to show that he was the managing partner of the firm, and that in June or July, 1876, without the knowledge of Malcolm, he borrowed the money of plaintiff, telling her that he could use it for the firm if she would let us have it, that she gave him a check for the money, and he gave her his individual note for the amount borrowed; that the money thus obtained was applied by him to the payment of debts which the partnership owed, that he took credit on his own individual account on the books of the firm for the amount borrowed, intending to charge himself with the amount when the firm paid it; that the note was payable in six months, and when it became due he paid the interest on it, and subsequently thereto gave her his note for $500; plaintiff paying him the difference between four and five hundred dollars; that witness told plaintiff that the money for which the original note was given had gone to pay the debts of the firm.
The evidence of plaintiff in rebuttal tended to show that plaintiff had business transactions with the firm of Demuth & Malcolm; that in June, 1876, Demuth asked plaintiff if she had money in bank, and told her that the firm could use it, and she could have it back in six months; that he came to her a few days after, and she gave him a check for between four and five hundred dollars, and he gave his note to her for the same; that she did not read the note at the time; that afterward, about Christmas, 1877, she learned for the first time that the note was signed by Demuth alone, and told him he ought to have signed it in the firm name;...
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...objection in the appellate court that the issue was not properly presented in the pleadings. [Henslee v. Cannefax, 49 Mo. 295; Meader v. Malcolm, 78 Mo. 550; Heath Goslin, 80 Mo. 310; Thompson v. Wooldridge, 102 Mo. 505, 15 S.W. 76; State ex rel. v. Phillips, 137 Mo. 259, 38 S.W. 931; Fergu......
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...have been given, saying, "courts should not allow traps to be thus sprung, although upon the inattentive." To the same effect is Meader v. Malcolm, 78 Mo. 550. Heath v. Goslin, 80 Mo. 318, the insistence was that as plaintiff had failed to reply, judgment should have gone for the defendant,......
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...Leabo v. Goode, 67 Mo. 126; Insurance Co. v. Harlan, 72 Mo. 202; Edmonson v. Phillips, 73 Mo. 57; Chouteau v. Gibson, 76 Mo. 38; Meader v. Malcolm, 78 Mo. 550; Young v. Glascock, 79 Mo. 574; Heath v. Goslin, 80 Mo. 310. Touching the point ruled by these authorities, an apt quotation is freq......
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