Third National Bank v. D. A. Faults & Co. , 115 Mo. App. 42 ( 1905 )

ELLISON, J.

— This action is based on a petition containing eight counts, each on a separate promissory note for borrowed money, and a ninth count on an overdraft. The judgment in the trial court was for the defendant Beedy and against the other defendants on each of the counts.

‘ The notes are signed, D. A. Fults & Co., J. A. Fults, D. A. Fults and J. D. Franklin. Defendant Beedy is sought to be held on the ground that he was a member of the partnership of D. A. Fults & Co. The only contest here is as to his liability; The business of the partnership of D. A. Fults & Co. was contracting with the federal government for transportation of the mail over certain mail routes. One of the Fults bid for such contracts and, after securing same, would frequently sublet to others. The defendants, including Beedy, became interested in these and divided the profits, though Beedy does not admit himself to have been a partner as charged. We shall, however, assume that he was a partner. It is clear from .the business of the firm and the evidence .heard that it was what is known as a non-trading partnership. The trial court properly so declared in an instruction.

It is determined as law that partners in a non-trading firm have no implied power to bind one another by commercial paper executed in the name of the firm. To make such, paper binding, tbe party seeking to- bold other members must show, either previous authorization, or subsequent ratification. [Deardorf v. Thacher, 78 Mo. 128; Webb v. Arlington, 27 Mo. App. 559; Randall v. Lee, 68 Mo. App. 565; Stavnow v. Kenefick, 79 Mo. App. 44.]

But plaintiff complains of tbe action of tbe court on tbe instructions given and refused. Tbe instructions given at plaintiff’s instance were quite complete and full in tbe advancement of its theory of tbe case. Tbe jury were told in tbe second instruction to find for plaintiff-if it was usual and customary “in similar partnerships to execute notes for money.” There was evidence tending to show that defendant Beedy, after becoming aware o'f tbe existence of tbe notes, admitted and acknowledged to defendant bis liability. This be denied and tbe issue of fact thus made was directly submitted for tbe jury to determine. There were one or more instructions offered by plaintiff substantially on tbe same theory, which were refused, but we entertain no doubt that tbe jury were in this respect sufficiently advised as to tbe law and tbe proper finding thereunder. Tbe instructions for defendant were tantamount to a direction to find for plaintiff if any of tbe theories advanced by tbe latter were believed. Tbe instructions, as an entirety, leave no possible room to doubt that tbe jury was properly and fully instructed on all phases of tbe case as put by tbe plaintiff.

There is no contradiction, as suggested by plaintiff, between defendant’s seventh and eighth instructions. Tbe seventh informs tbe jury that, although they should believe that there was a firm of D. A. Fults & Co-, and that defendant was a member of tbe firm, yet they could not find for plaintiff unless tbe notes were given for purposes within tbe scope of tbe partnership business, or unless they were authorized by defendant. Tbe eighth was based on the hypothesis submitted that, if there was no such firm or partnership under the name of “D. A. Fplts & Co.” (the name signed to the notes), then there could be no verdict against defendant Beedy, though he was a member of a partnership composed of himself and the other defendants, unless he, in some way, consented to, or knew of the use of such firm name as an obligor on such notes.

The instructions as a whole were to the following-effect : That the partnership was a non-trading partnership. That prima facie, defendant was not hound by a note given for borrowed money. That to render defendant liable he must have authorized or ratified the giving of the notes. This latter proposition was put to the jury in several ways; that is, that he would be bound, if he knew that Fults was using the name of the partnership of which he was a member, and made no objection, or that, if he was told of the notes by defendant and admitted his liability, etc.

It is stated to be the law in Deardorf v. Thacher, supra, that, if the execution of promissory notes is usual in similar partnerships, the partners not signing will be liable, notwithstanding it is a non-trading partnership. In this case it was shown that there were other partnerships in the mail-carrying business in Sedalia and vicinity; and that they executed notes for borrowed money. But in each instance it appeared that the notes were also signed by the individual members of the partnership, while here it is not pretended that defendant Beedy had any personal connection with the notes in suit. So, therefore, it is apparent that, if Beedy is to be held by reason of usage, it must be the same usage. The usage shown to prevail here was a usage which secured the personal consent of the members, and it therefore should not have found place in this controversy as it did in the instructions given. But as this was an error in plaintiff’s interest, no complaint can properly be heard on that head.

Objection is made to the refusal of plaintiff’s eighth instruction. It did not state the law as to a non-trading partnership. Even if defendant and the other members of the firm authorized D. A. Fults “to act as managing partner with full power and authority to conduct the firm’s businessit did not authorize the signing of notes, since such acts are not within the scope of the business of such partnership. Furthermore, it is very questionable whether it does not so read as to convey the idea that defendant would be bound by the authority given to D. A. Fults “by the other members of the firm.” But, be that as it may, it was substantially given in plaintiff’s second instruction. As before stated, we do not believe the jury lacked any instruction on the theories advanced by plaintiff as a reason for its recovery.

We consider the court’s withdrawal of the evidence heard as to what I). A. Fults told plaintiff’s officers as to defendant being a partner, was proper, since it was mere hearsay.

We also consider the court’s ruling correct in admitting evidence of conversations between D. A. and J. A. Fults and plaintiff’s cashiers prior to the execution of the notes in controversy, wherein they told those officers that they intended putting in bids for the mail service, but wanted first to know if they and Franklin (no mention of defendant) could get money. These conversations, as expressed by a witness, were a part of the negotiations for the money afterwards borrowed and for which these notes were executed. And it makes no difference that a part of them were had with plaintiff’s cashier who vacated before the money was borrowed, and a part with the cashier in office when it was borrowed.

The motion for a new trial complained of an expression by one of the defendants to a witness, in the presence of some of the members of the jury, that defendant Beedy ought not to pay the notes in controversy. It was not shown to have been a remark made for an improper purpose, or in any way to influence the jury, or by any design. We feel without authority to disturb the discretion of the trial court in refusing to grant a new trial on that ground. [Kennedy v. Holladay, 105 Mo. 21; Fendler v. DeWald, 14 Mo. App. 60.]

We do not believe that any substantial error materially affecting the merits of the case was committed and, hence, affirm the judgment.

All concur.