Nugent v. Armour Packing Co.

• Decision Date: 24 December 1907
• Parties: NUGENT v. ARMOUR PACKING CO.
• Court: Missouri Supreme Court

106 S.W. 648

208 Mo. 480

NUGENT v. ARMOUR PACKING CO.

Supreme Court of Missouri, Division No. 1.

December 24, 1907.

1. SALES—ACTION FOR PRICE—DEFENSES.

Where, in an action for the price of goods sold, the petition did not disclose the fact that plaintiff was a partner with a third person, the issue of partnership was properly raised by the answer, for, if a partnership existed, the title to the price was in the firm.

2. PARTNERSHIP — EXISTENCE OF RELATION — REQUISITES.

In determining whether the relation between parties constitutes a partnership, their intention, as discovered by the whole contract, governs, and proof of participation in profits and losses of a going business is but prima facie evidence of a partnership, which may be rebutted.

3. SAME—EVIDENCE—INSTRUCTIONS.

Where, on the issue of the existence of a partnership between plaintiff in an action for stone sold a third person, it appeared that plaintiff held a lease on a quarry and owned the tools and appurtenances, that the third person had no interest therein, that with a view of adjusting their liability between themselves it was agreed that the third person should take plaintiff's tools as collateral, and that the third person acted for plaintiff in collecting installments for the stone, etc., an instruction that the arrangement between plaintiff and the third person, if amounting merely to the giving to the third person a portion of the profits received on the stone furnished, the third person was not a partner, etc., properly charged on the issue, and a party desiring further instructions thereon should have requested a special charge.

4. APPEAL—EVIDENCE—AFFIDAVITS FOR NEW TRIAL.

Facts in an affidavit for new trial on the ground of newly discovered evidence are not substantive evidence and do not touch the merits of the case on appeal.

5. NEW TRIAL — GROUNDS — NEWLY DISCOVERED EVIDENCE—DISCRETION OF COURT.

The granting of a new trial on the ground of newly discovered evidence is within the sound discretion of the trial court, exercised after considering the questions of diligence, and whether the newly discovered evidence is merely cumulative.

Appeal from Circuit Court, Jackson County; W. B. Teasdale, Judge.

Action by David Nugent against the Armour Packing Company. The Kansas City Court of Appeals (81 S. W. 506) affirmed a judgment for plaintiff, and transferred the cause to the Supreme Court on motion of defendant. Affirmed.

A. F. Smith and Frank Hagerman, for appellant. Lathrop, Morrow, Fox & Moore and Cyrus Crane, for respondent.

LAMM, J.

Nugent, a quarryman, sued defendant corporation for "1,000 perches of footing or heavy dimension stone" sold and delivered by him to it. The theory counted on was a quantum valebant—the reasonable worth put at $1.50 per perch. Deducting payments, recovery was sought for $935.05, with interest. The answer follows: "Defendant for amended answer to plaintiff's petition denies generally each and every allegation therein contained. Further answering, defendant says there is a defect of parties plaintiff, in that Emmett V. Starr is a necessary party hereto." Unfortunate below, defendant appealed to the Kansas City Court of Appeals from a judgment of $1,015. At its October term, 1903, aided by the oral argument and full briefs, the following opinion by Smith, P. J., was handed down, concurred in by all his Brethren of that learned bench: [See 81 S. W. 506.]

It seems the decision was criticised with fervor and uncommon keenness in a motion for a rehearing, fortified by a formidable brief; but the motion was in turn denied. Thereat counsel filed a motion to transfer the cause to this court, and that motion was sustained. Defendant's counsel may be allowed to state the ground upon which the transfer was made in their own words, viz.: "The case * * * was by that court certified to this court for the reason that in the opinion of one of the judges the case was in conflict with the case of Torbert v. Jeffrey, 161 Mo. 645, 61 S. W. 823." It will do to say, in passing, that the litigation has been pending nearly as long as Solomon was building his temple at Jerusalem. That the case was tried, nisi, before an able judge (Teasdale), whose untimely death put out a bright light in jurisprudence. That at every stage, and on both sides, case and court were aided by alert counsel, adept in legal thrust and parry (every allowable carte and tierce), and soundly grounded in the law. At one stage it was contended that a constitutional point was involved, to wit, the statute permitting nine jurymen to render a verdict, and that our jurisdiction might hinge on that statute; but that question has so long been closed it is deemed obsolete and laid away on the shelf with other curios and "points, no-points" in the law. Counsel do not press it now.

We shall adopt the opinion of Judge Smith as our own, submitting, however, to further consideration the error assigned in giving instruction No. 1 for plaintiff, in which instruction there is said to be laid away the live question of our jurisdiction. Counsel argue that said instruction, which gave to the jury the rule by which to allow or disallow a partnership between Nugent and Starr, did not lay down the right standard to measure the existence or nonexistence of a partnership. They argue that, in sustaining that instruction, the opinion is in conflict with Torbert v. Jeffrey, supra. Facts going to a partnership between Nugent and Starr and the latter's connection with the case not appearing in the petition, the issue was properly raised by the answer. If that partnership existed, the title to the pay for the stone in suit was in the partnership of Nugent and Starr, and not in Nugent alone. Defendant was vitally interested in foreclosing the possibility of another suit and further liability, and hence its challenge to the right of recovery was well made by answer.

Attending to the only evidence directed to the issue of partnership, we copy from defendant's brief in this court (pages 32, 33), viz.: "The only evidence on this proposition was the evidence of the plaintiff on the trial, his admissions contained in his deposition read on the trial, and the evidence of Emmett V. Starr in defendant's affidavit for a continuance. This evidence was as follows: Nugent (oral evidence): Q. Now then, Mr. Nugent, just getting back to the matter I asked you about, state what Starr's relation to you was at the quarry and in that business. A. Why, I told Mr. Starr when Mr. Kinlon refused to help me with the quarry— he got a big sewer contract here—I says: `Mr. Starr, I saw Mr. Kinlon and told him I would have to have somebody to tend these cars'—there were hardly any of them loaded when I got down there— Q. Go ahead. A. I told him there weren't any of them loaded down there, and somebody would have to look after it, and Mr. Kinlon had the lease on this quarry, and was going partnership with me. I told him it was time to show up and help me out on this deal. So he told me: `All right.' `Very well,' he says, `Why don't you get Starr to help you out? He has got some teams, and he can do that outside business for you, and you can do what is right with him.' So I told him: `All right.' I says (to Starr, as we see it): `Maybe you better go to work and let somebody else drive your team.' And I says: `Tend to seeing these cars loaded and weighed, and see that they don't get overloaded out there on the track, and leave your teams up there,' I says, `and I will do the right thing with you, and maybe give you an interest in that quarry, and if I don't give you an interest in it I'll do the right thing by you anyway.' So he said: `All right.' He went and consulted his father. His father told him he could— Mr. Smith: Wait a minute. Q. Never mind what his father said. And then he went to work there? A. Yes, sir. Q. Now, when you got through with this thing, or when you stopped there, did you have any sort of settlement with him? A. Not a thing, only I just turned him over my tools. He got a job of riprapping, and I turned over my tools, and he has got them yet until I do settle with him. Q. He has got them until you compensate him? A. Yes. Q. And that was all there was to it, till you do the fair thing, whatever that is? A. Yes, sir. Q. What is agreed to, and he holds your tools as security for that? A. Well, he holds the tools anyway, I suppose, for security for it. (Abs. 24.) Nugent: (Deposition.) Q. Did you handle this contract alone, or did you have some...