Stone v. Guth

• Citation: 102 S.W.2d 738,232 Mo.App. 217
• Parties: HOWARD B. STONE, APPELLANT, v. EDWIN F. GUTH, ROY HAUSGENS, EMMETT L. BARNES, THE EDWIN F. GUTH COMPANY, A CORPORATION, BUTLER-KOHAUS, INC., AND SUNLIGHT ELECTRIC COMPANY, A CORPORATION, RESPONDENTS
• Decision Date: 02 March 1937
• Court: Court of Appeal of Missouri (US)

102 S.W.2d 738

232 Mo.App. 217

HOWARD B. STONE, APPELLANT, v. EDWIN F. GUTH, ROY HAUSGENS, EMMETT L. BARNES, THE EDWIN F. GUTH COMPANY, A CORPORATION, BUTLER-KOHAUS, INC., AND SUNLIGHT ELECTRIC COMPANY, A CORPORATION, RESPONDENTS

Court of Appeals of Missouri, St. Louis

March 2, 1937

Rehearing denied March 26, 1937.

Appeal from the Circuit Court of City of St. Louis.--Hon. Arthur H Bader, Judge.

AFFIRMED.

Judgment affirmed.

William S. Campbell for respondent, Butler-Kohaus Company, a Corporation.

Arnold Loewenstein for respondents, Roy Hausgens and Sunlight Electric Company, a Corporation.

Jacob M. Lashly and William S. Campbell for respondents, Edwin F Guth, and Edwin F. Guth Company, a Corporation.

(1) Trial court did not err in sustaining demurrer to the evidence, nor in overruling appellant's motion to set aside involuntary nonsuit. (a) Appellate court will affirm judgment of the trial court where record discloses any ground upon which judgment may stand. Heybrock v. Hormann, 265 Mo. 21, 164 S.W. 547; Love v. Love, 250 Mo. 491, 157 S.W. 590; Stoner v. Roger, 200 Mo. 295, 98 S.W. 600. (b) Evidence fails to show that an "Association" of electrical contractors was ever organized, or if organized that the respondents were members thereof; nor does the evidence show any conduct attributable to respondents which should estop them from denying liability on the claim sued upon. Clark et al. v. Grand Lodge, 328 Mo. 1084, 43 S.W.2d 404. (c) There was no evidence showing that said respondents directly participated in or authorized the transaction upon which appellant predicates his alleged cause of action. Farmers' State Bank v. Kuchs, 163 Mo.App. 606, 147 S.W. 862; Mendenhall Co. v. Booker, 226 Mo.App. 945, 48 S.W.2d 120; Semco Color Press Co. v. Bonded Ins. Co., 157 Okl. 238, 11 P.2d 465; 13 Mich. Law Review, p. 281. (d) The alleged unincorporated association (of which it is charged that respondents were members) was not a copartnership or joint adventure for the reason that there was no agreement between the alleged members to make or share profits. Myers v. St. Louis Structural Steel Co., 333 Mo. 464, 65 S.W.2d 931; Willoughby v. Hildreth, 182 Mo.App. 80, 167 S.W. 639; Lindemann v. Advance Stove Works, 170 Ill.App. 423. (e) Evidence fails to show that said respondents were members of the alleged association at the time the debt sued upon was incurred. Hely v. Hinerman et al., 303 Mo. 147, 260 S.W. 471; Fagan v. Long, 30 Mo. 222; Hornberger v. Orchard, 39 Neb. 639, 58 N.W. 425; 5 C. J., sec. 94, p. 1362. (2) Trial court did not err in excluding from evidence appellant's Exhibit F. (a) Appellant did not lay a sufficient foundation for the introduction in evidence of the entries contained in said exhibit. Greenwood's Estate, In re, 201 Mo.App. 39, 208 S.W. 635; Dameron v. Harris, 218 Mo. 247, 219 S.W. 281; Jungkind Photo Co. v. Yates, 257 S.W. 820; Ridenour v. Wilcox Mines Co., 164 Mo.App. 576, 147 S.W. 852. (b) Entries made in books and records of an unincorporated association in the usual course of business are not competent evidence to prove that a particular defendant is a member of an association, although a sufficient foundation is laid for their introduction in evidence. Robins v. Warde, 111 Mass. 244; Abbot v. Pearson, 130 Mass. 191; Yocum v. Benson, 45 Ill. 435.

Charles A. Lich and Louis L. Hicks for appellant.

(1) The court erred in giving and reading to the jury instructions in the nature of demurrers to the evidence offered by all of the defendants, and in subsequently overruling plaintiff's motion to set aside involuntary nonsuit taken after the giving and reading of said instructions. Booth v. Scott, 205 S.W. 633, l. c. 642; Hunt v. Salisbury, 55 Mo. 310; Richardson v. Pitts, 71 Mo. 128; Martin v. Sewell, 79 Mo., l. c. 411; Hyatt v. Van Riper, 105 Mo.App. 664; Glenn v. Bergman, 20 Mo.App. 343; Davidson v. Hobson, 59 Mo.App. 130; 5 C. J. 1362-63; Hobart Tie Co. v. Grodsky, 46 S.W.2d, l. c. 861; Ferris v. Shaw, 72 Mo. 446; Benny v. Guyton, 40 S.W.2d, l. c. 572. (a) The undisputed evidence shows that the Associated Electrical Contractors, Inc., was neither a de jure or a de facto corporation; and, therefore, the members of said organization are liable as parties and/or joint adventurers. The Guth Company and others were members of the association at the time that the plaintiff's employment was contracted for, and respondents undoubtedly overlooked the fact that on Exhibit A at the time of applying for membership Mr. Guth penciled the date "5-6-31" thereon, which figures appear at the lefthand side of the exhibit. That the figures are in the handwriting of Mr. Guth is very apparent when the figure "5" indicating the fifth month is compared with the numeral "5" appearing in the notation "$ 15.00 per month." This constitutes prima-facie evidence sufficient to submit this question to the jury. Had plaintiff's Exhibit F been received in evidence, this being the roster of members which was excluded by the court, the dates of the commencement of membership of the various members would have been definitely shown. Under Point 2 of their brief, the respondents cite two Illinois and one Massachusetts case tending to uphold their contention that the roster of members was properly excluded. As against these authorities permit us to list the following citations which hold that corporate records and stock registers are competent evidence to prove membership in a corporation. Leggett v. Glenn, 47 F. 742; Penscot v. Dummer, 40 Me. 172; Preston v. Cutter, 64 N.H. 461; Bisbane v. Railway Co., 94 N.Y. 204; Glenn v. Orr, 96 N.C. 413; Bank of Commerce Appeal, 73 Pa. 59; Stewart v. Railway Co., 32 Gratt (73 Va.) 146; South Branch Railway Co. v. Long, 43 W.Va. 131; Semple v. Glenn, 91 Ala. 245; Howard v. Glenn, 85 Ga. 238; Holland v. Iron Mining Co., 65 Minn. 324; In re St. Lawrence Steamboat Co., 44 N.J. L. 529; Condgon v. Winsor, 17 R. I. 236. (2) The trial court committed error in excluding testimony and evidence as to the membership of the Associated Electrical Contractors, Inc. 22 C. J. 899-901.

SUTTON, C. Hostetter, P. J., and Becker and McCullen, JJ., concur.

OPINION

SUTTON, C.--

This case, which is an action to recover $ 1,050 for services alleged to have been rendered by plaintiff as business manager for defendants, comes to the writer by reassignment.

Plaintiff in his petition alleges that the defendants are and were at all the times mentioned in the petition members of an association known as the Associated Electrical Contractors, Inc., and that said association purported to be a corporation, but was never incorporated, and that the members thereof are and were copartners operating under the name and style of Associated Electrical Contractors, Inc.; that defendants as such Associated Electrical Contractors, Inc., published a magazine called the Electrical Trade Review; that one C. A. Steepleton was managing editor of said Electrical Trade Review and was the agent and servant of the defendants for the purpose of hiring employees to edit and publish said Electrical Trade Review; that on June 15, 1931, plaintiff was employed by defendants as business manager of the Electrical Trade Review at a weekly wage of $ 75, his duties being confined particularly to editing and publishing the Electrical Trade Review; that on June 16, 1931, he entered upon his duties as business manager and continued to fulfill his duties until September 16, 1931, at which time he quit and discontinued his employment.

Each of the defendants filed a verified answer denying generally the allegations of the petition and denying specifically the existence of the partnership alleged in the petition.

The cause was tried to a jury. At the conclusion of plaintiff's case the court gave and read to the jury instructions in the nature of demurrers to the evidence on behalf of all of the defendants. Thereupon plaintiff took an involuntary nonsuit, and judgment was given accordingly. Plaintiff's motion to set the nonsuit aside was overruled. Plaintiff appeals.

Plaintiff complains here of the giving of the instructions in the nature of demurrers to the evidence as to defendants Edwin F. Guth Company and Roy Hausgens. He does not contend that he made out a case for the jury as to the other defendants.

Plaintiff testified that he was employed by C. A. Steepleton and J. J. O'Mara, secretary of the Associated Electrical Contractors, Inc., as business manager of a monthly publication, known as the Electrical Trade Review, at a wage of $ 75 per week; that he entered upon his duties as business manager on June 16, 1931, and continued in that position until September 16, 1931; that the Electrical Trade Review was a magazine that was a part of a campaign to combat the local electrical workers' union in St. Louis, and to inform the public of the conditions which existed and the various activities of the heads of that organization and the electrical trade generally; that the office was at first located in the Louderman Building; that there was a sign on the door of the office as follows:

"Associated Electrical Contractors, Inc.,

"Electrical Trade Review."

Plaintiff further testified that the office was afterwards removed to the Fullerton Building; that there was a like sign on the door of that office; that C. A. Steepleton was managing editor of the Electrical Trade Review; that Mr. Steepleton agreed to pay him $ 75 a week, and that this was approved by Mr. O'Mara; that they told him that they had $ 10,000 that had been furnished by electrical contractors; that he was told that the finance committee had a definite pledge of $ 10,000 as a campaign fund.

Plaintiff further testified that he first met Edwin F. Guth, president of the Edwin F. Guth Company, in the...