Donk Bros. Coal & Coke v. Aronson

77 S.W. 132, 102 Mo. App. 590, 1903 Mo. App. LEXIS 622

• Court: Missouri Court of Appeals
• Decided: November 17, 1903
• Status: Published

Opinion

REYBURN, J.

This action for balance of an account for goods sold and delivered, brought originally against four defendants, but dismissed as to one, proceeded to trial before the court as a jury; defendants were sought to be charged as co-partners under the firm name of Mound City Coal & Ice Company. Defendant Jacob Lippe for separate answer pleaded, that he was not a partner with his co-defendants under the partnership title, or at any of the time averred; that he was not a partner with said parties nor in the Mound City Coal & Ice Company in any manner or capacity during the time set forth, and that he never at any time or in any manner had contracted the debt sued on by plaintiff, and was not indebted to plaintiff, and this answer was verified by the affidavit of this defendant.

The plaintiff offered evidence to establish the correctness of the account sued on, and rested without tendering any proof of the persons composing the alleged co-partnership of the Mound City Coal & Ice Company. The defendant, Jacob Lippe, thereupon asked the following declaration of law:

“The court declares the law to be that under the pleadings and evidence in this case, they must find á verdict in favor of the defendant, Jacob Lippe,” which the court refused to give and gave the declaration prayed by plaintiff thus:

“The court declares the law to be that under the pleadings herein the partnership of Jerome W. Aron-son, Henry Aronson and Jacob Lippe is admitted as charged in plaintiff’s petition, said co-partnership not having been denied by affidavit filed with the pleadings in the cause.”

Defendant Lippe thereupon asked leave to file an affidavit to conform to the ruling of the court, which was as follows:

“State of Missouri, city of St. Louis, ss. — Jacob Lippe, being duly sworn on his oath states, that he was not at any time of the times stated in the petition in the above entitled cause, a member of any firm doing business under the name of Mound City Coal & Ice Company, and that he is not a partner with any of the co-defendants named in the petition in any manner at any time stated in the petition. — Jacob Lippe.”

The court denied leave to file the affidavit and rendered judgment against all the defendants for the amount claimed with interest accrued. Respondent Lippe alone filed a motion for a new trial which the court sustained and plaintiff has appealed.

Section 746, Revised Statutes 1899, inter alia, provides “and where plaintiff or defendant sues or is sued as a corporation, and where plaintiffs or defendants sue or are sued as a partnership, and the names of the several partners are set forth in the petition or answer, it shall not be necessary to prove the fact of such incorporation or partnership, unless the opposite party put such fact in issue by affidavit filed with the pleadings in the cause.” The then able presiding judge of the Kansas City Court of Appeals has ably portrayed the object of this provision of the statute in Haysler v. Dawson, 28 Mo. App. 531, stating its design to be to make the party first purge himself of the imputation of a mere dilatory plea, and relieving the opposite party of the necessity of making proof unless put in issue in the statutory method.

The question here presented appears not to have been directly presented to this court, but in Walker v. Point Pleasant, 49 Mo. App. l. c. 247, the judge, announcing the decision, by implication would have held a verified plea or answer supported by affidavit denying the corporate existence of a municipal corporation, a compliance with the statute then in force, if the question had then been before him for decision. Nor does Supreme Court seem to have been expressly called upon to determine the point here made by appellant, though again inferentially, language adopted in Short v. Taylor, 137 Mo. l. c. 525, and Flynn v. City of Neosho, 114 Mo. l. c. 573, strongly incline toward the position contended for by respondent.

In Meyer Bros. v. Ins. Co., 73 Mo. App. l. c. 169, when the Kansas City Court of Appeals was first invited to construe the above provision of the statute, the court held where the answer of defendant,-sued as a corporation, specially denied its corporate existence, and was verified by affidavit, that under the statute, if defendant had desired to put in issue its corporate existence it should have done so in the manner required by the statutory provision by affidavit filed with the pleadings, but it was further held that the defendant, a private corporation, was concluded from such denial in this case, by appearing and defending in its corporate name, and one judge dissented from the paragraph of this opinion holding that the answer did not put in issue the corporate existence of defendant.

In Richards v. McNemee, 87 Mo. App. 396, the same court, all the judges concurring, with the, only change in its individuality the succession of the judge rendering the decision vice the judge dissenting in the former case of Meyer v. Ins. Co., had again presented the similar question respecting the existence of a partnership •challenged by answer authenticated by jurat. In the original opinion, the ruling in Meyer Bros. v. Ins. Co., was adhered to, and it was held that it was not sufficient to merely swear to a pleading filed in the case, which denied the partnership or incorporation, but to answer the terms of the statute, the affidavit of itself must contain all the necessary denials (l. c. 401). Upon motion for rehearing the court modified its former ruling, and announced as its conclusion, that such a construction of the statutory provisions was too technical, in view of what was generally understood as necessary to constitute an affidavit. In this latter expression of the Kansas City Court of Appeals we concur, believing that the actual evil sought to be remedied by this legislation is reached, and the true object of the statute attained by the proper verification of a plea traversing the existence of a partnership or corporation, without incorporating such denial in a separate paper and affidavit.

The judgment is affirmed.

Bland, P. J., and Goode, J., concur.