Falkinburg v. Daggs

Missouri Court of Appeals

Falkinburg v. Daggs

79 S.W. 1176, 105 Mo. App. 595, 1904 Mo. App. LEXIS 617

DecidedMarch 29, 1904

StatusPublished

This text of 79 S.W. 1176 (Falkinburg v. Daggs) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Falkinburg v. Daggs, 79 S.W. 1176, 105 Mo. App. 595, 1904 Mo. App. LEXIS 617 (Mo. Ct. App. 1904).

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Opinion

GOODE, J.

This is an action to recover for services consisting of sawing timber and threshing grain rendered by the plaintiff to the defendant. A counterclaim was preferred for certain machinery, belting, lumber and other articles sold and furnished the plaintiff by the defendant.

Plaintiff had judgment and the defendant appealed.

[596]*596But one point is made for a reversal and that is that John D. Falldnburg was not the sole party in interest, for the reason that the sawing and threshing were done by the firm of John D. Falldnburg & Son, an alleged partnership consisting of the plaintiff and his son James Falldnburg. Some things were said in the testimony of the plaintiff that look like he and his son were in partnership, while other portions of his testimony, and the testimony of James Falkinburg, go to prove that the latter was working for his father. It is inferable from the plaintiff’s testimony that the work was done by him and his son James, or rather his two sons, and that he regarded it, as he says, as “a family matter.” There was testimony, too, that he paid his son James for his work.

The issue of whether there was a partnership was submitted to the jury by appropriate instructions requested by the defendant, which told the jury that if they found there was, the plaintiff could not recover. There being contrary testimony on the subject, the finding of the jury in favor of the plaintiff is conclusive and the judgment is affirmed.

Bland, P. J., and Reyburn, J., concur.

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GOODE, J.

This is an action to recover for services consisting of sawing timber and threshing grain rendered by the plaintiff to the defendant. A counterclaim was preferred for certain machinery, belting, lumber and other articles sold and furnished the plaintiff by the defendant.

Plaintiff had judgment and the defendant appealed.

[596]*596But one point is made for a reversal and that is that John D. Falldnburg was not the sole party in interest, for the reason that the sawing and threshing were done by the firm of John D. Falldnburg & Son, an alleged partnership consisting of the plaintiff and his son James Falldnburg. Some things were said in the testimony of the plaintiff that look like he and his son were in partnership, while other portions of his testimony, and the testimony of James Falkinburg, go to prove that the latter was working for his father. It is inferable from the plaintiff’s testimony that the work was done by him and his son James, or rather his two sons, and that he regarded it, as he says, as “a family matter.” There was testimony, too, that he paid his son James for his work.

The issue of whether there was a partnership was submitted to the jury by appropriate instructions requested by the defendant, which told the jury that if they found there was, the plaintiff could not recover. There being contrary testimony on the subject, the finding of the jury in favor of the plaintiff is conclusive and the judgment is affirmed.

Bland, P. J., and Reyburn, J., concur.

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Bluebook (online)

79 S.W. 1176, 105 Mo. App. 595, 1904 Mo. App. LEXIS 617, Counsel Stack Legal Research, https://law.counselstack.com/opinion/falkinburg-v-daggs-moctapp-1904.