Rimel v. Hayes

• Decision Date: 31 October 1884
• Citation: 83 Mo. 200
• Parties: RIMEL v. HAYES et al., Plaintiffs in error.
• Court: Missouri Supreme Court

83 Mo. 200

RIMEL

v.HAYES et al., Plaintiffs in error.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Cooper Circuit Court.--HON. E. L. EDWARDS, Judge.

REVERSED.

Cosgrove & Johnston for plaintiffs in error.

(1) The statements alleged to have been made to different witnesses by the members of the firm of Hayes, Eager & Co. were not communicated to defendant in error, if at all, until after he made the contract with Smith to do the work for which the suit was brought, and were, therefore, inadmissible in evidence. Smith's Leading Cases (5 Amer. Ed., Hare & Wallace's notes) pp. 981, 982; Freeman v. Broomfield, 43 Mo. 391. A man cannot be made a partner against his will, or by accident. Baird v. Planque, 1 Foster & F. N. P. 334; Irving v. Conklin, 36 Barb. 64; Osborne v. Brennan, 10 Amer. Dec. 614. General reputation of the manner of doing business on the part of Hayes, Eager & Co. is not competent to bind them. 1 Greenlf. Ev. § 52; Smith v. Griffin, 5 Hill 336; Scott v. Blood, 16 Me. 196. (2) The question propounded to plaintiff by his counsel asking to whom he gave credit and whether he would have done the work on the credit of Smith was leading and improper. Danforth v. Carter, 4 Ia. 235. (3) The instructions given on behalf of plaintiffs below are erroneous. They, especially those numbered 1, 2 and 4, tell the jury, in substance, that the plaintiffs in error are liable to defendant in error, if their manner of dealing came to his knowledge, no matter when. This knowledge should have come to defendant in error before the contract with Smith was entered into. Time is material. 1 Smith's Lead. Cases, pp. 981-2; Freeman v. Broomfield, 43 Mo. 391; Irving v. Conklin, 36 Barb. 64; Osborne v. Brennan, 10 Am. Dec. 614. (4) The instructions numbered 12, 13, 14, 15, 16, 18 and 19, prayed by plaintiffs in error, should have been given. They presented the true issue to the jury. They were correct declarations of law.

Draffen & Williams for defendants in error.

The first point made by the plaintiffs in error simply goes to the weight of the evidence which was passed upon by the jury and will not be reviewed here. There is nothing in the point made about “general reputation” to establish partnership. No such evidence was given, and in the defendants' 3d instruction the court expressly told the jury that it could not be proven in that manner. The evidence of other transactions at the same time, showing defendants were dealing as partners of Smith, and were so holding themselves out in the community was competent. Gates v. Watson, 54 Mo. 585; 2 Greenlf. Ev. (10 Ed.) § 583; Story on Part. (5th Ed.) §§ 64, 65. The question asked plaintiff as to the parties to whom he gave credit was proper and it was so ruled in Gates v. Watson, 54 Mo. 585; Rippey v. Evans, 22 Mo. 157. The instructions given fully presented the law to the jury. There was no error in refusing those from 12 to 19 asked by defendants. “The number alone was sufficient to justify a court in refusing them.” Crawshaw v. Sumner, 56 Mo. 517. The defendants in addition to the principle upon which they were held liable below are also liable under the following cases: Thomas v. Moody, 12 Rep. 71; Clements v. Yates, 3 App. Rep. 580.

PHILIPS, C.

This action originated in a justice's court, based on the following account filed with the justice:

“J. R. SMITH, W. C. HAYES and WM. P. EAGER,

In account with ISAAC RIMEL.

To hauling 902 railroad ties, at 7 cts. a tie

$63.14”

There was no service on the party, Smith, and the action was dismissed as to him. The defendant, Eager, was served with summons. An alias summons was issued and the defendant, Hayes, was brought in thereunder. Judgment in the justice's court for plaintiff, and defendants appealed to the circuit court where, after one mistrial, the plaintiff again recovered judgment, and defendants prosecute this writ of error.

The evidence showed that the firm of “Hayes, Eager & Co.” were in the spring of 1878 engaged in the business of general merchandise at the town of Overton in Cooper county. The firm was composed of Wm. G. Hayes, Wm. P. Eager and H. Wooldridge. During that spring, about March and April, the said J. R. Smith appeared in the neighborhood and circulated the following hand bill:

“WANTED,

100 TIE MAKERS.

To make ties in Cooper and Moniteau counties, Mo. Will pay from 11 to 12 1/2 cents per tie; will pay every day or each week as desired. Cross at Rocheport and enquire for the tie works of Hayes, Eager & Co., eight miles below Overton, Cooper county, Mo.

J. R. SMITH; HAYES, EAGER & Co.”

Various parties applied to Smith and made contracts for getting out and hauling ties. Among them was plaintiff, who did hauling to the amount claimed in his account. He seeks in this action to hold the defendants responsible for his work on the ground that they were partners with Smith in this matter. This the defendants resist on the ground that they were not such partners with Smith and had nothing to do with plaintiff's contract. The plaintiff while not claiming the defendants and Smith were partners inter sese, yet seeks to recover on the ground that they held themselves out to the community as such partners, and that plaintiff entered into the contract with Smith and performed the work sued for on the faith of the existence of such partnership. Much evidence was offered, pro and con., touching this issue, so much of which as bears on the error assigned will be noticed in the course of this opinion.

I. As there was no sufficient evidence of the existence of a partnership in fact between Smith and defendants in the tie business in question, the plaintiff sought to hold defendants liable on the ground that by their acts, conduct and declarations, they appeared before the public as such partners, and the plaintiff entered into the given contract and rendered the service sued for on the faith of the fact that they were jointly interested with Smith. As proof touching the issue the plaintiff, over the objection of defendant, was permitted to introduce in evidence a conversation had between one Stock and said Smith in which Smith is alleged to have said: “Hayes Eager & Co. were in partnership with him,” and, perhaps, some other witness testified to other conversations had with Smith. Neither of defendants was present at such conversation. Upon what principle these statements were admitted against these defendants is not apparent. Smith was not a party to the record, and consequently the statement could not be admitted for the purpose of binding him. It was not competent against the defendants because he was a stranger to the record. If it be defended as the statement or admission of a co-partner, on the idea that one partner is the agent of the others, it is manifest the proposition assumes the very matter in controversy, to-wit: does the partnership exist? A fact to be found aliunde by the jury. The injustice of this evidence becomes the more glaring when it is observed that its tendency was to establish the existence of a partnership inter sese between defendants and Smith, whereas the court, on objection by plaintiff, excluded altogether the proffered evidence by defendants to show there was no such partnership in fact. Neither this, nor any other statement made by Smith, in the absence and without the sanction of defendants, had a tendency to prove that defendants held themselves out as partners of Smith. It was no declaration of theirs.

This character of evidence has been uniformly repudiated by the courts. Smith v. Hulett, 65 Ill. 495, is directly in point. It was an action of assumpsit commenced against Smith, Bishop and Griffin. Smith and Bishop only were served. Griffin was not summoned, nor did he appear to the action. The effort was to charge Smith and Bishop by virtue of an alleged partnership between them and Griffin. Much evidence, there as here, was introduced to establish the existence of the partnership. Against the defendants' objection the declarations of Griffin were admitted to prove the fact of partnership. The court say: “Griffin, although his name was included in the summons, never having been served with process, was not a party to the suit. No judgment could have been had against him. Nothing was required to be proved against him in order to sustain a judgment against him. If there had been, his admission would have been competent. But the proof was only to be made as against Smith and Bishop in order to recover a judgment against them. Although the partnership between the three was to be proved, it must have been done by competent evidence. As against Smith and Bishop the declarations of Griffin were not competent evidence to prove a partnership. One man can not thus affect another by his declarations. If Griffin had been a party to the suit his declarations would have been admissible as against himself where material to obtain a judgment against him, but as he was not a party there is no ground upon which they could be let in to prove the fact of partnership.” Citing 1 Greenlf. Ev., 177; Degan v. Singer, 41 Ill. 28; Dutton v. Woodman, 9 Cush. 256; Robbins v. Willard, 6 Pick. 464. In Freeman v. Bloomfield, 43 Mo. 393, it seems to have been taken nem. con. that such “declaration alone if actually made can in no way bind” the defendants. It would be not only unjust, but liable to grossest abuse to admit the declarations of an irresponsible imputed partner, not sued even, to fix upon others the fact of a partnership with himself.

II. In two or more instances plaintiff introduced evidence of the acts and statements of said Wooldridge, touching the hauling and paying for ties without, perhaps, sufficiently connecting the defendants therewith. Wooldridge was not a party to this suit. He is not even named in the account exhibited by plaintiff as the basis of his statement. It is true the evidence discloses that he was a member of the mercantile firm of Hayes, Eager & Co. But his power and agency to...