O'Neal v. Perry

• Decision Date: 06 October 1936
• Docket Number: No. 23842.,23842.
• Citation: 96 S.W.2d 900
• Parties: O'NEAL v. PERRY et al.
• Court: Missouri Court of Appeals

96 S.W.2d 900

O'NEAL v. PERRY et al.

No. 23842.

St. Louis Court of Appeals. Missouri.

October 6, 1936.

Appeal from St. Louis Circuit Court, Division No. 14; Eugene L. Padberg, Judge.

"Not to be published in State Reports."

Action by Samuel W. O'Neal against J. H. Perry and Mrs. J. H. Perry, doing business under the Hotel Gibson. Judgment for plaintiff, and defendants appeal.

Judgment reversed and cause remanded.

Karol A. Korngold, of St. Louis, for appellants.

John H. Finnegan, of St. Louis, for respondent.

HOSTETTER, Presiding Judge.

This is a suit for the recovery of $50, which originated in a justice of the peace court of the city of St. Louis where plaintiff prevailed and defendants duly perfected their appeal to the circuit court, and, upon a trial therein before the court (a jury having been waived), which was had on the 8th day of January, 1935, the court took the case under advisement until the 18th day of March, 1935, when it rendered a verdict and judgment in favor of the plaintiff and against both defendants in the sum of $50 and costs. Thereupon defendants, after an ineffective motion for a new trial, bring the cause to this court by appeal for review.

The petition averred, in substance, that plaintiff was a boarder, or guest, at the Gibson Hotel, located in the city of St. Louis, at a time while it was being conducted and operated by defendants and that he, as bailor, deposited with defendants for safekeeping $125 to be returned on demand; that thereafter, while still a boarder or guest, he demanded a return of said sum of $125 from defendants, and received from them only $75, leaving a balance of $50 still due, which defendants fail and refuse to deliver and for which sum he prays judgment with costs.

The answer, which was verified by the affidavit of their attorney, contained, first, a general denial and a special denial that defendants are doing business as the Hotel Gibson or that they are partners in the operation of said business.

Plaintiff testified that he was a boarder at defendants' place for two or three years; that defendants were partners in the operation and management of the Gibson Hotel; that they held themselves out as being partners in the management and operation of the hotel business; that in June or July of 1932 he placed $125 with the night clerk, who accepted same and put it in the safe; that his purpose in so doing was that defendants had a notice on the door that they would not be responsible for valuables left in the room which might be stolen therefrom; that he demanded a return of his money this next day, but did not get it then, but later did receive $75 from Mrs. Perry, but had never received the remaining $50; that after the robbery Mrs. Perry called him to her room and asked him not to demand the money immediately and he said he would not; that she could take it out of the rent or could pay him as she got the money; that she needed the money then to defray her expenses in taking her niece to Mayo Bros. in Rochester, Minn., that while she was at Mayo Bros. he received a letter from her reading as follows:

"Glena is doing nicely but don't know when she will be out of the hospital. My attack is much better. I am taking treatments every other day for it, and it has done me a lot of good. When I talked to you that day up in my room about coming here and paying you back the money Joe took, if I had known then, I had to stay here this long and what I had to go through with and what I have had with Glena I never would have come, and if you had said you had to have it I could not have come, and if I had not come Glena would have been a cripple all of her life, so I will never forget you, and I am sure when I return I will be able to make some money to pay you with. It has been very expensive for me and I did not think I could possible do it, except by the help of Mayo in not asking for their bill until we were well and able to get home and pay them by the month."

Plaintiff further testified that defendants, from their frequent conversations with him, left the implication that they were partners while not directly saying so; that they had operated a hotel at Hot Springs and that they were in business together here (in St. Louis) and making a little better in business here than in the hotel they had owned at Little Rock, Ark.

On cross-examination he testified that the conversations he had had with defendants, about their partnership and their being in business here and in Arkansas, took place prior to the time he had left his money with the clerk and when it was stolen; that he might have had a conversation with them a month or two after the money was stolen; that he had quite a few conversations with them regarding the partnership proposition; that they said they were in business and he naturally took it they were partners.

Counsel for defendants here moved that the previous statements of the witness be stricken from the record as being merely a conclusion on his part. Thereupon the court proceeded to interrogate the plaintiff as follows:

"The Court (Q.): Did you ever have any direct conversation in which they told you that? A. As far as — I know partnership was mentioned at some time or other in the conversation, that they were in business together and naturally a partnership being mentioned, between husband and wife, that is natural that would be mentioned.

"The Court (Q.): You implied or took for granted that this was a partnership? A. No, but in some of the conversations nothing was spoken of, but they were in business together, but at one time or another they had mentioned they were partners in the business together.

"Mr. Korngold (Q.): In Hot Springs? A. In Hot Springs and St. Louis.

"The Court (Q.): They told you they were partners? A. Yes.

"The Court: I will have to overrule you since he has positive proof they were partners."

Plaintiff further testified that in the conversation which took place after the robbery, during which both defendants told him they were partners, there were present at said conversation Mr. and Mrs. Perry and one of their daughters and himself; that in the conversation Mrs. Perry spoke about business being very bad, and that, if it had not been for him (witness), they could not have taken the child to the hospital; and that Mr. Perry thanked him as having given them help, "as they were more or less partners in the business"; that the Gibson Hotel had thirty-five or forty rooms; that prior to the...