Mudd v. Bast

• Decision Date: 31 March 1864
• Citation: 34 Mo. 465
• Parties: JOHN J. MUDD et als., Respondents, v. GEORGE Y. BAST et als., Appellants.
• Court: Missouri Supreme Court

34 Mo. 465

JOHN J. MUDD et als., Respondents,

v.GEORGE Y. BAST et als., Appellants.

Supreme Court of Missouri.

March Term, 1864.

Appeal from St. Louis Circuit Court.

Wm. T. Wood, for respondents.

A. M. & S. H. Gardner, for appellants.

DRYDEN, Judge, delivered the opinion of the court.

This was an action by John J. Mudd, Alexis Mudd, and Graham L. Hughes, to recover the price of certain personal property, which it was alleged they had sold and delivered to the appellants. It was charged in the petition that the plaintiffs “in the year 1857 were co-partners doing business under the name and style of Mudd & Hughes;” and that while plaintiffs were so co-partners as aforesaid, to-wit, on or about the 10th day of September, 1857, plaintiffs bargained, sold and delivered to the defendants “the property described.” The answer denied “that the firm of Mudd & Hughes, at the time mentioned in said petition, consisted of said plaintiffs, but charged the fact to be that said firm was composed of said plaintiffs with Henry T. Mudd and Armistead O. Grubb.” The answer likewise denied the sale and delivery of the goods.

On the trial the respondents offered the said Armistead O. Grubb as a witness, who on his voire dire stated that “the firm of Mudd & Hughes up to August, 1855, consisted of John J. Mudd, Graham L. Hughes, and Alexis Mudd. That from August, 1855, to March 18, 1856, said firm of Mudd & Hughes consisted of John J. Mudd, Alexis Mudd, Graham L. Hughes, and the witness A. O. Grubb. That he, the witness, became a member of said firm in August, 1855. That in March, 1856, Henry T. Mudd became a member of said firm; and the firm of Mudd & Hughes from March, 1856, to the 1st of January, 1858, consisted of witness A. O. Grubb, John J. Mudd, Alexis Mudd, Graham L. Hughes, and Henry T. Mudd. * * * * Witness further stated that he had no interest in the suit, that the property described in the petition was the property of the firm before he became a member of it; that said property was never carried into the firm of which witness became and was a member and partner, and was never taken or considered as assets, and was not assets of the firm of which witness was a member, and witness has not now and never had any interest in said property, nor in this suit, nor in any recovery that may be had in this suit.”

The appellants then objected to the witness being sworn in chief, and to his giving testimony in the cause, and assigned for cause “that he was a member of the firm of Mudd & Hughes at the time of the alleged transaction.” The objection was overruled, and the witness testified in chief. Henry T. Mudd was likewise offered as a witness by the respondents, and was permitted to testify after the same objection and with the like result as in the case of the witness Grubb. These were the only witnesses examined, and their examinations in chief disclosed the same facts respecting their interest in the matter in controversy, and as to who constituted the firm of Mudd & Hughes, as their testimony on their voire dire.

At the close of the evidence the appellants asked the court to declare the law of the case as follows, viz:

“1. If it appear from the evidence that the firm of Mudd & Hughes consisted of John J. Mudd, Graham L. Hughes, and Alexis Mudd, up to about August, 1855, and in August, 1855, Armistead O. Grubb was taken into the firm as a partner, and the four named persons did business under the firm name of Mudd & Hughes up to about March, 1856, and in March, 1856, they took into the firm as a co-partner Henry T. Mudd, and that the firm of Mudd & Hughes from March, 1856, to...