Swift & Co. v. C. B. Scott & Co.

• Decision Date: 03 February 1914
• Citation: 163 S.W. 538,181 Mo. App. 1
• Parties: SWIFT & CO. v. C. B. SCOTT & CO.
• Court: Missouri Court of Appeals

163 S.W. 538

181 Mo. App. 1

SWIFT & CO. v. C. B. SCOTT & CO.

St. Louis Court of Appeals. Missouri.

February 3, 1914.

1. PARTNERSHIP (§ 54) — EXISTENCE OF RELATION—SUFFICIENCY OF EVIDENCE.

In an action for goods sold to a firm, wherein it was sought to charge defendant as a member of the firm, evidence held to sustain a finding that defendant was not a member of the firm.

2. APPEAL AND ERROR (§ 302)—MOTION FOR NEW TRIAL—INSTRUCTIONS.

Questions as to instructions will be deemed waived when not contained in the motion for new trial.

3. EVIDENCE (§ 317)—EXISTENCE OF PARTNERSHIP —HEARSAY.

Where, in an action for goods sold to a firm, wherein it was sought to charge defendant as a partner, there was evidence that defendant's name was on the stationery, it was error to permit a third party to testify that he had heard a conversation between defendant and the alleged partner, in which defendant had remonstrated with the alleged partner for using his name, stating that he had no right to use his name, as he was not a member of the firm, since it was mere hearsay.

4. WITNESSES (§ 388)—IMPEACHMENT—CONTRADICTORY STATEMENTS — NECESSITY OF FOUNDATION.

Where, on the examination of a witness, she was not asked concerning an affidavit containing statements inconsistent with her testimony, it was error to admit the affidavit in evidence.

Appeal from Circuit Court, St. Francois County; Peter Huck, Judge.

Action by Swift & Co. against C. B. Scott & Co. From a judgment for defendant, plaintiff appeals. Reversed.

Merrill Pipkin and Edward A. Rozier, both of Farmington, for appellant. Benj. H. Marbury, of Farmington, for respondent.

NORTONI, J.

This is a suit on an account for goods sold and delivered to defendants as copartners. It appears that defendant, C. B. Scott, alone defended on the theory that he was not a member of the partnership, and the finding and judgment were in his favor on that issue. From this judgment plaintiff prosecutes the appeal.

Plaintiff is engaged in the sale of dressed meats to butchers. It appears that defendant, Scott, is a farmer and resides on a farm several miles from Desloge, Mo., but he owns a building at Desloge, and formerly operated a butcher shop therein. However, for some months prior to the opening of the butcher shop involved here, he had resided on his farm in St. Francois county, having sold or closed his butcher shop some time before. About February 1, 1909, a butcher shop was opened for business in defendant Scott's building at Desloge, under the firm name of C. B. Scott & Co. N. L. Meadows, a nephew of Scott, was in charge of the butcher shop, and appeared to be the active member of a copartnership. The evidence reveals that a painted sign bearing the name of "C. B. Scott & Co." was upon the building, and the business was all done under that name. Indeed, the purchases of meats from plaintiff were made by Meadows, in charge of the business, under the name of C. B. Scott & Co. Such payments as were made on account for purchases were by check on the bank signed, "C. B. Scott & Co.," by Meadows. Meadows sought to purchase goods under the partnership name, and plaintiff's credit department investigated the financial standing of the firm. It found that C. B. Scott, though living on his farm in the country, was responsible and sold the goods to Meadows as the active member of the firm of C. B. Scott & Co. on the credit, of course, of both, but more particularly on that of his uncle, defendant here. The account in suit amounts to $224.36. The first item appearing thereon is of date April 7, 1909, and the last item, May 12th of the same year. About May 15th Meadows closed the butcher shop, and, it is said, "decamped" for some reason to plaintiff unknown. His mother, defendant Scott's sister, went to her brother's farm immediately, and requested him to come and take charge of the business. He came to Desloge and sought to collect some of the accounts, took into his possession $90 of money that had been collected on accounts, and left with his mother by Meadows, and paid a part of that to Armour & Co. and about $30 to this plaintiff on account. However, defendant denied that he was a partner, or in any wise interested in the business, and testifies that he so stated to plaintiff when he made the payment, saying that he paid this amount on the account merely for the purpose of prorating on the debts of the concern such moneys as came into his hands from his nephew. It is defendant's theory that he was not a partner with his nephew at any time, but he admits having discussed the matter of entering into partnership with him immediately prior to the opening of the butcher shop. By a letter in evidence, written by defendant, Scott, to plaintiff on May 30, 1909, it appears that he impliedly admitted that he had been a member of the firm, but says he had severed his connection with the firm of C. B. Scott & Co. and notified plaintiff's traveling man, Mr. Jolly, of that fact the first time he met him. That date appears to have been March 31, 1909, or a few days before the first item on the account involved here. The record abounds with evidence tending to prove defendant, Scott, was a partner with Meadows but, as before stated, he insistently denies it, and this was the only issue tried in the case. The account is not disputed, and it seems to be conceded that plaintiff sold and delivered the meats to C. B. Scott & Co. at the instance of Meadows, who was in charge of the butcher shop. Defendant put the matter of partnership at issue by a verified answer, as the statute requires, and insisted throughout that he did not know the business was being conducted in his name. His testimony goes to the effect that he was living on the farm, and did not visit the town of Desloge but...