Kahn v. Overstolz , 82 Mo. App. 235 ( 1899 )

BOND, J.

Schubaeh and Marx were copartners engaged in buying and selling tickets for the transportation of persons by carriers. In October, 1896, Marx sold out his interest in the firm to defendant Overstolz for $2,500. Thereupon Schubaeh and Overstolz continued the business under the firm name and style of Schubach’s Ticket Office, and agreed between themselves to purchase for the use of the firm a membership in the American Ticket Brokers Association, owned by one Stockbridge, at the price of $2,500, $1,500 of which was to be contributed by Overstolz, and $1,000 by Schubaeh. To this end Overstolz paid his part, and Schubaeh got $1,000 from plaintiff and contributed it as his part, giving to her agent therefor a note for that sum. In reference to the signature of this note plaintiff’s witness states it was signed like the one in suit, “Schubaeh Ticket Office, A. Schubaeh.” Defendant testified that the only signature affixed to it was “Albert Schubaeh.” Both that note and the one in renewal thereof, upon which this action is brought, recited “I promise to pay, etc.” The evidence shows that the money received upon the note to plaintiff was charged on the books of the concern to the investment account of A. Schubaeh; that the interest on this note was paid and charged to the individual account of A. Schubaeh. This suit is upon the renewal note. Defendant Overstolz answered under oath, averring the non-execution of the note by him or his firm, want of title in the plaintiff, and no consideration to himself or to his firm. The cause was submitted to the court without a jury. No instructions were asked or given, and a judgment in favor of Oversto'lz was rendered, from which plaintiff appealed.

Conceding that the copartnership to which respondent belonged was so far a trading one as to authorize its members to excute notes in its name, the presumption of liability thus created against all the members of the firm is prima facie not conclusive. Bank v. Schoen, 123 Mo. 650; Deardorf v. Thatcher, 18 Mo. 128. Hence the trier of the facts upon the adduction of evidence tending .to show that the note in suit Avas not executed for a partnership purpose but for the individual debt of a member of the firm, and that this fact was knoAvn to the holder, had the right to find against the presumption arising' from the face of the note and the oral evidence supporting that presumption. The law is, that it is the exclusive and constitutional province of the jury or triers of the fact to determine the credibility of witnesses and the Aveight of their testimony, and when, as in the present case, this has been done by a trial judge sitting as a jury, his finding as to the facts will not be reversed on appeal, except upon clear eAddence of unjiidicial bias. In this case the learned circuit court judge had all the parties before him, and could see and mark their demeanor and manner of testifying, the nature of their answers, whether frank and unreserved, or evasive and shifty. He evidently concluded that the preponderance of the evidence did not show that plaintiff’s agent, who conducted the loan, was not aware that the borrower Schubach was seeking 'the money for his individual account. There axe many and cogent circumstances supporting this view arising from the testimony showing that Schubach gave the original note as his personal obligation; that the intermediary who effected the loan was Schubach’s brother-in-law and former partner, and therefore naturally cognizant of his, Sehubach’s affaire. Besides, the undisputed evidence showed that the money realized upon the note was actually used by Schubaeh as his private contribution to the firm. In addition to all this the wording of the notes themselves did .not indicate a joint obligation to pay. These and other circumstances in the record fully acquit the learned trial judge of a willful disregard of unimpeached evidence. His conclusion is therefore binding on us.

Something is said in appellant’s brief as to the rulings of the court upon the evidence introduced on the trial. An inspection of the abstract fails to show that any exceptions to the admission or rejection of evidence were taken during the course of the trial. The point suggested is not therefore before us for review. The judgment in this case is affirmed.

All concur.