Richardson, Mellier & Co. v. Farmer

• Decision Date: 31 July 1865
• Citation: 36 Mo. 35
• Parties: RICHARDSON, MELLIER & Co., Respondents, v. W. B. FARMER AND W. H. JOPES, Appellants.
• Court: Missouri Supreme Court

36 Mo. 35

RICHARDSON, MELLIER & Co., Respondents,

v.W. B. FARMER AND W. H. JOPES, Appellants.

Supreme Court of Missouri.

July Term, 1865.

Appeal from Greene Circuit Court.

At the close of the evidence, the plaintiffs moved the court to instruct the jury as follows:

1. Each acting member of a partnership has an implied authority to execute notes in the partnership name, in payment of any article in which their trade was carried on.

2. Where two or more persons combine their property, labor, or skill, in the transaction of any lawful business for their common profit, such persons are partners.

3. That if they find for plaintiffs, the measure of damages will be the amount of notes sued on, &c.

4. The jury are directed to find for the plaintiffs.

5. A dormant partner is liable, whenever found, for goods purchased and used for the benefit of the firm, and the accepting by plaintiffs of the notes sued upon in payment for a bill of drugs purchased by W. H. Jopes of them, and the acceptance of said notes in payment therefor, if said drugs were used for the partnership of W. H. Jopes & W. B. Farmer, may not be in acceptance of the liability of Jopes alone, or an exlusive credit to him, but was binding upon all for whom Jopes acted.

The defendant Farmer then moved the court to instruct the jury:

1. That if they believe from the evidence that Wm. H. Jopes gave the notes sued on as his own individual notes, and in his own individual name, that he alone will be bound by said notes, even if the jury should also find that the goods for which the notes were given went to the benefit of both Jopes and Farmer. And if the jury believe that the notes were thus given and accepted by plaintiffs as the individual notes of Jopes alone, they will find in favor of defendant Farmer.

2. That the notes being in the name of Jopes alone, is Prima facie evidence that they are individual notes, and not those of a partnership or firm.

3. That the burden of proof in this case rests on the plaintiffs to establish, that these notes are the contract of a firm and ought to bind them, and not the contract of Jopes alone.

4. That plaintiffs having charged the defendant Farmer with being a co-partner of Jopes, the whole burden of proof lies upon them to prove what they have asserted; and, in addition to that, to prove that Farmer was also a partner of Jopes in the transaction which gave rise to plaintiff's cause of action.

5. That this suit is brought upon two promissory notes; and if plaintiffs recover, they must do so on these notes, and not upon a liability or contract outside and distinct from these notes.

6. That the main question in the case is, as to whether the notes sued upon are the notes of W. H. Jopes, individually, or the notes of a firm composed of Jopes & Farmer, as a firm doing business under the name and style of W. H. Jopes; and in the determination of this question, you will determine whether there was such a firm or not. If you find there was such a firm, the next question is, as to whether it was, at the time of the execution of the notes sued upon, doing business under the name of W. H. Jopes. If you find there was no such firm, or if you find that it was not doing business under that name, you will find for the defendant.

7. The court further instructs the jury, that if they believe from the evidence that Jopes gave the notes sued upon as his own individual notes, and in his own individual name, that he alone will be bound by said notes; and if the jury believe from the evidence that the notes were thus given and accepted by plaintiffs as the individual notes of Jopes alone, they will find in favor of defendant Farmer.

The court, at the instance of plaintiffs, refused the first instruction asked by defendant, to which refusal defendant excepted. The court then gave the other instructions asked by defendant. The jury then returned a verdict in favor of plaintiffs against both defendants, upon which judgment was rendered.

The defendant Farmer then filed his motion for a new trial.

Krum & Decker, with Lindenbower, for respondents.

The only exceptions saved which can arise in this court, are upon the failure of the court to give one and the only one instruction refused for the defendant and giving plaintiff's instructions, and the failure to sustain the motion for a new trial on the alleged ground of newly discovered evidence. Farmer, in his amended answer, denies the existence of any partnership between himself and Jopes; there was no other issue on the trial; the consideration of the notes was not denied.

The evidence tended to prove that the defendants were carrying on the drug business in Springfield, Missouri, under the name of W. H. Jopes; that Farmer was interested in the business from the start, and shared in the profits; and that Farmer advanced in fact the working capital, and finally obtained the proceeds from the sale of these goods; that the goods for which these notes were given, were purchased in the usual course of trade, and formed part of the stock the proceeds of which were finally received by Farmer.

a. The first question raised by the appellant is, whether parol evidence can be introduced to show that the name of “William H. Jopes,” signed to the notes, was the name of a firm or mercantile partnership composed of the defendants. We know of no law which will prohibit parties from adopting any name as their partnership or firm name; and for this reason it would seem strange that a plaintiff ought to be prohibited from showing that the defendants were partners, and acting under a particular name and bound by such act and name. There can be no doubt that a dormant partner is liable for partnership debts created by verbal contract; why should he be less liable on written contracts, executed in the name to which he has consented as the partnership name in written contracts?

Although the contract was made only in the name of one partner, and the plaintiff gave credit to only one partner, their joint interest fixes their joint responsibility. (1 Pars. on Cont. 150, and cases cited.)

The cases of notes executed by the agent in his individual name are not applicable, although even in them the tendency of modern decisions is to allow parol evidence in an action against an unknown principal, on an obligation professedly on its face the individual act of the agent. (Smith et al. v. Alexander, 31 Mo. 193; McAllister v. Budd, 33 Mo. 417; Bay. on Bills, 501-2 &c. South Carolina Bank v. Case, 8 B. & C., 427; Sto. Part. &c., 139.) It being always, however, necessary in such cases to show that the note was given for partnership purposes.

The difficulty arises only in those cases where the partner in whose name the business of the partnership is transacted has also another and different business on his own responsibility. (Manuf. Bank v. Winship, 5 Pick. 11.) In the case at bar there was no pretence that the note was not given for the joint benefit of both, or that Jopes had any business separate from the firm. A case of a liability fixed on a dormant partner, very similar to the case at bar, may be found in Stephens v. Hampton, 29 Mo. 264; Smith on Cont. 255; Beckham v. Brake, 9 Mees. & W. 79; Winship v. Bank U. S., 5 Pet. 530; Sheehy v. Mandeville, 6 Cranch, 54.)

b. The court committed no error in overruling the motion for a new rial, based on the alleged newly discovered evidence.

I. The grounds upon which this motion rests are no longer open to doubt. New evidence is so easily manufactured, ex parte affidavits so readily obtained, that courts have guarded with the utmost vigilance the attempts to re-open the gates of litigation where they have been once closed by a verdict. Parties are required to use the utmost diligence to prepare their case and evidence made for trial; and the least neglect chargeable to them is fatal to a new application. What are the requirements and conditions upon which a new trial may be obtained on account of new evidence? In the case of Berry v. State, 10 Geo. R. 511, the rules are aptly stated by the celebrated Justice Lumpkin, and they have been adopted in 3 Grah. & Wat. 1021-2, and also by this court in the case of State v. McLaughlin, 27 Mo. 111, as follows:

The applicant must show:

1. That the evidence has come to his knowledge since the trial.

2. That it was not owing to the want of due diligence that it did not come sooner.

3. That it is so material that it would probably produce a different result if the new trial were granted.

4. That it is not cumulative.

5. That the affidavit of the witness himself should be produced or his absence accounted for.

6. That the object of the testimony is not merely to impeach the character or credit of a witness. (Warren v. Ritter, 11 Mo. 354; Boggs v. Lynch, 22 Mo. 565; 3 Grah. & W., New Trials, 1065; Caldwell v. Dickson, 29 Mo. 228.)

It is not sufficient for a party to show that he did not know of the evidence, but he must make it appear that he could not have discovered it by using diligence. (Knox v. Work, 2 Binn. 582; Coe v. Given, 1 Blackf. Ind., 367.) Even in criminal cases this is the rule. (Laveille v. Harrison, 30 Mo. 228; Garner v. Le Beau, 20 Mo. 229.)

The respondents have not only, during the pendency of this appeal, lost the use of the money to which they were entitled, but have been put to the cost and expense of the employment of counsel to prosecute their claim in this court upon a record which does not even show the shadow of error--but does show that the powers of law have been vexatiously abused by the appellants for the mere purpose of delay. Unless the Supreme Court will frown upon these sham appeals by assessing damages, (which after all is no more than the money is actually worth,) parties for mere delay will, and do, find it profitable to appeal upon the most frivolous grounds.

Sherwood & Young, Ewing & Muir, for appellants.

I. The first, fourth and fifth instructions given for plaintiffs are erroneous.

II. The first instruction...