Rippey v. Evans

• Decision Date: 31 October 1855
• Citation: 22 Mo. 157
• Parties: RIPPEY, Respondent, v. EVANS, AND OTHERS, Appellants.
• Court: Missouri Supreme Court

22 Mo. 157

RIPPEY, Respondent,

v.EVANS, AND OTHERS, Appellants.

Supreme Court of Missouri.

October Term, 1855.

1. A person who holds himself out as a partner may be charged as a partner; and where in a petition a person is charged as partner, and the proof shows merely that he has held himself out as a partner; held, that this is no variance.

Appeal from St. Louis Circuit Court.

This was an action to recover the value of certain lumber furnished to the defendants as partners, at their request, and particularly at the request of defendant, Dennis. No answer was filed by any defendant except Dennis, who denied that at any time he did business as a partner with the other defendants; that they alone were partners, and that he (Dennis) was their clerk. The cause was submitted to the court sitting as a jury, and the plaintiff introduced proof showing that previous to the time the lumber was furnished, the other defendants, then doing business as partners under the name and style of Evans, Harris & Co., had been dealing with plaintiff, and, in the language of the witness, had “got tight up;” that about that time Dennis came to plaintiff's office and asked what the debt of Evans, Harris & Co., was, and went on to state that he was “going in with them;” that he had gone around and collected what the “concern” owed, and was satisfied; that afterwards, in ordering lumber, he said, “let our wagon have” such and so much lumber; that he talked of “our” property, and said that he was going down to the Republican office to give “us” a puff; with other evidence tending to the same result. It was also in evidence that plaintiff never would have trusted the other defendants alone.

Defendant introduced evidence tending to prove that previous to and about the time of the furnishing of the above lumber, an agreement was made between the other defendants, then doing business under the name and style of Evans, Harris & Co., on the one side, and Dennis on the other side, by which it was agreed that Dennis should loan the firm of Evans, Harris & Co. $5000; that they should take Dennis as their clerk to manage finances, at a salary of $1000, and if, at the expiration of one year, Dennis should desire to become a partner, then the $5000 should be considered a payment of his share; but if not, then the $5000 should be payable six months after notification; and said Evans, Harris & Co., the defendants, executed a deed of trust of certain real estate, to secure the payment of the...