Powell Hardware Company v. Mayer
| Decision Date | 28 November 1904 |
| Parties | POWELL HARDWARE COMPANY, Respondent, v. JOSEPH MAYER et al., Appellants |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. W. B. Teasdale, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Sam B Strother for appellants.
(1) At best the Powell Hardware Co. were merely guarantors without being requested to be so and under no circumstances could they recover in a case of this kind. (2) From the evidence in this case, it is clear that this was a non-trading copartnership. If this is true that this was a non-trading copartnership, in order that the defendants be bound, then all of the instructions given in behalf of the plaintiff are erroneous and the court should have given a peremptory instruction for defendant. Deardorff v. Thatcher, 78 Mo. 132; Holt v. Simons, 16 Mo.App. 97; Smith v Sloan, 37 Wis. 285, 19 Am. Rep. 757. (3) The petition does not state a cause of action. The defendants' demurrer to the evidence at close of testimony given by plaintiff, should have been given. Instruction three and four asked by defendant and refused by the court should have been given. Instruction 3 is as follows: "The jury is instructed that if you believe from the evidence that R. J Powell advanced the money paid out in behalf of defendants, then for whatever amount spent by him should be deducted from the amount sued for in this case." (4) Instruction four, should have been given. Laney v. Fickel, 83 Mo.App. 60; Bambrick v. Simms, 132 Mo. 48; Honeywell v. Canning Co., 53 Mo.App. 245; Lyons v. Murray, 95 Mo. 23. (5) This evidence shows these plaintiffs were partners of the defendants in this enterprise and it is a well-settled principle of law and the universal rule that "A partner can not maintain an action at law against his copartner on a partnership claim or liability." Laney v. Fickel, 83 Mo.App. 63; Bambrick v. Simms, 132 Mo. 48; Rankin v. Fairley, 29 Mo.App. 587.
Geo. N. Longfellow, Paxton & Rose for respondent.
(1) Defendants knew Powell was paying out money for them, and made no objections nor told him to stop work on the motor; this made them liable for the money so paid out. Kerr v. Cusenbury, 60 Mo.App. 558; Lindsay v. Moore, 9 Mo. 176; Wood v. Kansas City, 162 Mo. 303. (2) Powell was the agent of defendants, and when he took the money out of the Powell Hardware Co. with their knowledge and for their benefit, they became liable to an action for money had and received, whether there was any contract relation with the Powell Hardware Co. or not, or whether or not they knew whose money it was. 15 Am. & Eng. Ency. of Law (2 Ed.), pp. 1096-1097; Chase v. Mercantile Co., 63 Mo.App. 482; Jacoby v. O'Hearn, 32 Mo.App. 566; Winningham v. Fancher, 52 Mo.App. 458; Deal v. Bank, 79 Mo.App. 262. (3) The resolution that the members of the partnership made among themselves not to go in debt was of no avail if they afterwards departed from it.
Plaintiff was a mercantile corporation engaged in the hardware business and defendants composed a non-trading partnership interested in procuring a patent for a motor car and in constructing a model car to illustrate and show the value, utility and practicability of the proposed patent. R. J. Powell was secretary of the plaintiff corporation and president of the defendant partnership. Plaintiff claimed that Powell drew out money of the plaintiff corporation and used it in the necessary expenses of constructing the motor car and procuring a patent and brought this action for money had and received. On trial in the circuit court plaintiff obtained judgment, whereupon defendants came here for relief.
The evidence in behalf of plaintiff touches upon, or embraces several theories of liability, but it is of a very unsatisfactory and indefinite nature. All we can say of it is that it is unsatisfactory on any theory which it suggests. The principal evidence introduced by plaintiff came from Powell himself. From that it is manifest that the plaintiff company was a member of the defendant firm. He states that each of the plaintiff members was a member of the defendant firm though their shares were in his name, and he calls them silent partners. He stated that the plaintiff, as a corporation, was not a member of the defendant firm. This latter statement is, however, a mere conclusion of his, since his entire testimony shows that the company was in fact a member. There is no legal impediment to such membership; for a corporation without special charter authority may not become a member of another partnership, yet, it undoubtedly acted as such in this case. Powell testified that while the business was transacted by him, yet that the members of the plaintiff company were each interested in the defendant partnership and that the expected profits of the latter were to be divided between them. That the money used to pay for the interest in the defendant partnership was the plaintiff company's money, drawn out by him as secretary. He said that he expected to charge it to them individually, but not that it had been done. Indeed, there appears not to have been a single individual act taken, but all acts were those of the plaintiff company through Powell, as its secretary, and with the knowledge of his comembers, one being his wife. Furthermore, there was testimony from one of the defendants (nowhere disputed) that when Powell found that his name, only, appeared in the defendant partnership, he stated that it should have been in the plaintiff's name, but that since it was so put in, he would let it stand. Defendants asked that the jury be directed that if it was believed that the plaintiff was a member of the defendant partnership, the finding should be for defendants. The court improperly refused it. If such was the case, the plaintiff simply paid more than its share of the expenses and this action could not be maintained, since one partner can not sue another in this way. There should have been a case in equity for an accounting. Bambrick v. Simms, 132 Mo. 48, 33 S.W. 445; Laney v. Fickel, 83 Mo.App. 60; Lyons v. Murray, 95 Mo. 23, 8 S.W. 170.
There are further specific portions of the testimony in plaintiff's behalf which go to show that if plaintiff was not acting in partnership with defendants, and if they have an action against defendants, it would be for reimbursement as a guarantor of defendants' indebtedness which it paid in compliance with the guaranty. The witness Powell states that...
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