Vanhoosier v. Dunlap

• Decision Date: 02 April 1906
• Parties: VANHOOSIER et al. v. DUNLAP.
• Court: Missouri Court of Appeals

93 S.W. 350

117 Mo. App. 529

VANHOOSIER et al. v. DUNLAP.

Kansas City Court of Appeals. Missouri.

April 2, 1906.

1. PARTNERSHIP — ACTION — ALLEGATIONS OF PARTNERSHIP—FAILURE TO DENY UNDER OATH—EFFECT.

In an action by a partnership on a contract alleged to have been assigned to the firm, failure to deny the partnership under oath, while it admitted the partnership, did not admit that the contract was assigned to the firm and not to one of the members thereof as an individual, as claimed by defendant.

2. SAME—VARIANCE.

In an action by a partnership on a contract alleged to have been assigned to it, there can be no recovery by an individual member of the firm on a contract assigned to him as an individual.

3. NEW TRIAL—MOTION—FORM.

A motion for a new trial need not ask that the verdict be set aside.

Appeal from Circuit Court, Buchanan County; A. M. Woodson, Judge.

Action by George Vanhoosier and others against Robert C. Dunlap. From a judgment for plaintiffs, defendant appeals. Reversed.

W. B. Norris and W. K. James, for appellant. Samuel S. Shull, for respondents.

ELLISON, J.

This is an action on a contract to saw timber into lumber, wherein it is charged that defendant by selling the timber prevented plaintiffs from sawing, and thereby deprived them of the net profits in said work. The judgment in the trial court was for the plaintiffs.

The contract to saw the timber was originally made with one Ragan, but plaintiffs as a partnership (as they allege) were substituted in Ragan's place. Defendant contends that the partnership was not so substituted, but that Vanhoosier, one of the members of the partnership was substituted. The answer was a general denial, and there was no denial of the partnership under oath. The trial court ruled that the effect of the answer not being under oath was not only to admit the partnership of plaintiffs, but also that defendant's contract was with the partnership. We think the ruling erroneous, and also in refusing an instruction on the same subject. Notwithstanding the failure to deny the partnership under oath admitted the partnership, it did not admit the contract as alleged in the petition. Notwithstanding Vanhoosier was a member of the plaintiff partnership, there was nothing to hinder his making an individual contract. This was a material matter for defendant, since, in alleging a contract with a partnership, there can be no recovery by an individual member of the firm on an individual contract. Bagnell...