Pioneer Lumber Co. v. Van Cleave

• Decision Date: 08 December 1925
• Docket Number: No. 18984.,18984.
• Citation: 279 S.W. 241
• Parties: PIONEER LUMBER CO. v. VAN CLEAVE et al.
• Court: Missouri Court of Appeals

279 S.W. 241

PIONEER LUMBER CO. v. VAN CLEAVE et al.

No. 18984.

St. Louis Court of Appeals. Missouri.

December 8, 1925.

Rehearing Denied December 29, 1925.

Appeal from St. Louis Circuit Court, George E. Mix, Judge.

"Not to be officially published."

Action by the Pioneer Lumber Company against B. L. Van Cleave and others. Judgment for plaintiff, and defendants appeal. Reversed.

Leahy, Saunders & Walther and R. B. Haughton, all of St. Louis, for appellants.

Wood & Teasdale, of St. Louis, for respondent.

BECKER, J.

In a suit for the purchase price of 10 carloads of lumber the plaintiff recovered judgment for $6,751.71 against the defendants Van Cleave, Powe, and Harrington, as copartners doing business as the Van Cleave-Powe Lumber Company. The defendants in due course appeal.

Plaintiff's petition alleges that it sold 10 cars of lumber to the Van Cleave Saw Mills Company, a corporation, and that at the time the sale was made the said Saw Mills Company, unknown to it, was acting as the agent for an undisclosed principal, which undisclosed principal was the Van Cleave-Powe Lumber Company; that said Van Cleave-Powe Lumber Company was in fact a partnership in which the defendants Van Cleave, Powe, and Harrington were copartners.

The defendants' answer is a general denial, coupled with verified denial of partnership.

The defendants' position at the trial was that the lumber was bought by the Van Cleave Saw Mills Company, a corporation, and that the Van Cleave-Powe Lumber Company was but the selling department of the said Saw Mills Company, created and operated under the said name merely for the purpose of enabling the Saw Mills Company to increase its banking credit by borrowing money from banks on assignments of accounts on sales made in the name of its said sales department, the Van Cleave-Powe Lumber Company.

On the trial of the case the sole contested issue was whether the defendants Van Cleave, Powe, and Harrington were copartners doing business under the name of Van Cleave-Powe Lumber Company. Under the pleadings in the case the burden of proving this issue was upon the plaintiff.

The record discloses that at the close of plaintiff's case, and again at the close of the entire case, each of the defendants requested an instruction in the nature of a demurrer, each of which was overruled. It is in light of this situation that we have carefully read the record herein and have come to the conclusion that plaintiff failed to make out a case for the jury.

Plaintiff adduced as a witness William J. Becker, who testified that on January 10, 1923, as agent for plaintiff, he sold the 10 carloads of lumber in question to the Van Cleave Saw Mills Company, and directed plaintiff to ship same to said corporation. Next the witness identified ten invoices, and he stated they were "copies of invoices for the sale of 10 cars of lumber to the Van Cleave Saw Mills Company by the Pioneer Lumber Company." These invoices were introduced in evidence, and each showed that it had been "sold to the Van Cleave Saw Mills Company."

The plaintiff's next witness, Walter D. Dibbler, testified that he was "a certified public accountant and auditor"; that he had examined certain books of the Van Cleave Saw Mills Company and of the Van Cleave-Powe Lumber Company, which books he examined in the office of the trustee in bankruptcy for the Van Cleave Saw Mills Company. He identified the various books, which he designated as a general ledger, accounts receivable ledger, accounts payable ledger, cash book, and a sales book.

This witness testified that the purchase and sales record of the Van Cleave-Powe Lumber Company listed each of the cars of lumber in question; that "the name under mill and address was given as Pioneer Lumber Company and the customer as the Boeckeler Lumber Company of St. Louis"; that the cash book and journal further showed that the Boeckeler Lumber Company settled for the 10 cars of lumber; and that the money went to the Franklin Bank; and that the Franklin Bank deducted the amount of the assignment of the invoice and placed the balance to the credit of the Van Cleave-Powe Lumber Company. This witness further testified that, after a careful examination of the books, there were no entries to be found therein which indicated that said lumber had been purchased from the Van Cleave Saw Mills Company. He further testified that the books of the Van Cleave-Powe Lumber Company showed that in 1919 that company paid $8,111 in salaries, and in 1920 paid $18,992.62 in salaries; that the Van Cleave Saw Mills Company, both in 1919 and 1920, paid salaries approximating $20,000. This witness further identified a number of checks, letter heads, and notes which were signed with the printed form "Van Cleave-Powe Lumber Company." Some of the checks were signed by Van Cleave, and others by Powe. He also identified assignments of accounts signed by the Van Cleave-Powe Lumber Company to the Franklin Bank of St. Louis, though the sale was of lumber which had originally been billed to the Van Cleave Saw Mills Company. The witness, over the objection of the defendants, was permitted to testify that from his examination of the files with reference to the purchase and sale of the cars of lumber in question in the case he did not find anything, nor did he see anything, to indicate any connection of the Van Cleave Saw Mills Company with the Van Cleave-Powe Lumber Company.

This witness further testified that his examination of the books of the Van Cleave Saw Mills Company showed that "for the period subsequent to November, 1921, they do not show a complete lumber business on account of not showing purchases and sales." And over the objection of the defendants the witness was permitted to answer the following question:

"State whether, as a matter of your opinion, you could see any reason or necessity in keeping two separate sets of books such as they were and as you testified before in this case, if it was solely the Van Cleave Saw Mills Company."

The witness answered:

"I couldn't see any reason."

On cross-examination the witness testified that the purchase and sales record of the Van Cleave-Powe Lumber Company, on the outside thereof, had marked on the"cover in ink "V. P. Department," and that the "inbound book" of the Van Cleave Saw Mills Company (which, according to the witness, is the first book in which an entry is made of a car of lumber that is purchased) showed an entry that the 10 ears of lumber in question in this suit had been purchased from the Pioneer Lumber Company. Again, when shown the cash book and journal of the Van Cleave-Powe Lumber Company, concerning which he had testified to on direct examination, the witness admitted that on the first page or fly leaf of the book appeared the words "Van Cleave-Powe Lumber Company Department."

Being recalled, this witness, over the objection of the defendants, was again permitted to state that the various books of the Van Cleave-Powe Lumber Company constituted "a complete set of books for a department organization doing a wholesale lumber business," and that he never knew "of a department with a different name from the organization of which it is said to be a department."

Plaintiff next adduced as a witness H. T. Powell, who testified he was the auditor for the Boeckeler Lumber Company, and that said company purchased the 10 cars of lumber in question through a lumber broker; that the invoices for the cars were in the name of the Van Cleave-Powe Lumber Company, and the invoices bore a notation signed by the Van Cleave-Powe Lumber Company, per Treece; that the account had been assigned to the Franklin Bank.

The plaintiff was then permitted to read certain questions and answers from the deposition of the defendant Powe as admissions against interest, from which we quote the following:

"Q. Do you know of your own knowledge whether the Van Cleave-Powe Lumber Company was registered in the fictitious name department of the department of state of the state of Missouri? A. If it was, I never heard of that department before in my life."

Also testimony to the effect that W. C. Treece was in active charge of the office of the Van Cleave Saw Mills Company at the time the 10 carloads of lumber in question were purchased; that Treece bought and sold lumber under Powe's general supervision; and that it was within the course of Treece's duties to sell that lumber, using the name of the Van Cleave-Powe Lumber Company in invoicing it to a customer; and that Treece had authority to sign checks for said company.

That was all of the testimony adduced on behalf of the plaintiff. Each of the defendants thereupon requested an instruction in the nature of a demurrer, each of which was overruled.

As we have stated above, the defendants did not stand upon their demurrers, but adduced testimony, and we must therefore pass upon the demurrers as offered by the defendants" at the close of the case. However, before setting out defendants' testimony, no part of which in our view can be viewed as aiding in any way, shape, or form plaintiff's case, we will scrutinize the testimony adduced on behalf of plaintiff to see whether it contains any substantial evidence whatsoever in support of the contested issue of partnership. "In our view it does not.

Plaintiff has not introduced any written agreement as to a partnership between the three defendants Van Cleave, Powe, and Harrington, nor is plaintiff's theory of the case that of estoppel. When one examines plaintiff's petition we find a case founded upon a charge that the Van Cleave Saw Mills Company purchased 10 cars of lumber from plaintiff as the agent of an undisclosed principal, which undisclosed principal, it is alleged, was in fact the defendants Van Cleave, Powe, and Harrington, doing business as copartners under the name of the Van Cleave-Powe Lumber Company. Plaintiff's testimony, which is not disputed, is to the effect that the lumber in question was...