Swift & Company v. C. B. Scott & Company
| Decision Date | 03 February 1914 |
| Citation | 163 S.W. 538,181 Mo.App. 1 |
| Parties | SWIFT & COMPANY, Appellant, v. C. B. SCOTT & COMPANY, Respondent |
| Court | Missouri Court of Appeals |
Appeal from St. Francois Circuit Court.--Hon. Peter Huck, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Merrill Pipkin and Edward A. Rozier for appellant.
(1) The admission of affidavit of Cordelia Meadows and Charles Meadows was prejudicial error, as same was hearsay testimony. Dogherty v. Dogherty, 155 Mo.App. 481; Oak Lawn Sugar Co. v. Spark, 159 Mo.App. 496; Northrup v Colter, 150 Mo.App. 639; Prewitt v. Martin, 59 Mo. 325; Blooms Sons Co. v. Haas, 130 Mo.App. 122. (2) The testimony of C. E. Abshier as to statements made by C. B. Scott was error, for same were self-serving statements. Hitt v. Hitt, 150 Mo.App. 631; Blasland v Hicks, 70 Mo.App. 301; Nelson v. Railroad, 66 Mo.App. 647; Citizens Bank v. Durrill, 61 Mo.App. 543.
This is a suit on an account for goods sold and delivered to defendant 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, Missouri, 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 and Company. N. L. Meadows, a nephew of Scott, was in charge of the butcher shop and appeared to be the active member of the copartnership. The evidence reveals that a painted sign bearing the name of "C. B. Scott and Company" 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 and Company. Such payments as were made on account for purchases were by check on the bank, signed "C. B. Scott and Company," 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 and Company 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 12 of the same year. About May 15, Meadows closed the butcher shop and, it is said, "decamped" for some reason to plaintiffs 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 ninety dollars of money that had been collected on accounts and left with his mother by Meadows, and paid a part of that to Armour & Company and about thirty dollars to this plaintiff on account. However, defendant denied that he was a partner or in any wise interested in the business, and testified 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 and Company 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 and Company 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 three times during the interim while the butcher shop was being conducted there, and on none of these occasions did he notice that the sign on the shop bore the name of "C. B. Scott and Company." On the other hand, his sister, Mrs. Meadows, testifies that her brother, defendant Scott, employed a painter by the name of Bailey to make the sign, "C. B. Scott and Company" and caused it to be placed upon the building. According to the evidence of plaintiff's credit man, defendant called on him after Meadows had taken his leave from Desloge, paid thirty dollars on the account, and asked six months' time in which to settle the balance. For this he agreed to give a note, but afterwards declined to do so. After Meadows took his leave, about May 15, and defendant Scott found himself unable to collect the outstanding accounts, the shop was closed until some time in August, when defendant reopened it. He says he purchased it then from Meadows' father and mother and paid them ninety-two dollars therefor and gives in evidence a bill of sale signed by those parties to that effect. Defendant's sister, Mrs. Meadows, says they had mortgaged their property to start her son, young Meadows, in the business together with his uncle, Scott, and they executed the bill of sale to release their claims, if any, in consideration that Scott was to pay the debts of the partnership. But be all of this as it may, the case was tried solely on the...
To continue reading
Request your trial