172 Mo. App. 612 | Mo. Ct. App. | 1913
This is an action by plaintiff corporation, appellant here, against one Joe T. Wilson, respondent in this court, seeking to hold the latter liable as a partner for an alleged partnership debt.
It appears from the evidence that on or about June 12, 1907, one Joe Goldbaum launched a retail liquor business in the city of Cape Girardeau under the name of the “Cape Liquor Company.” That shortly prior thereto Goldbaum, desiring to enter into this business, and having no capital, induced the defendant Wilson and one John T. Sackmann to indorse notes for him to the amount of $1200- upon which money was procured from banks in order to conduct and carry on the business. It was agreed between the defendant and Sackmann on the one hand and Goldbaum on the other that, out of the profits of the business, payments were to be made on these notes by Goldbaum, as fast
The business was conducted by Goldbaum under this arrangement until' about September 3, 1907, at which time there was a further agreement between him, Sackmann and the defendant, whereby it was agreed that if Goldbaum would pay off these notes, and pay all debts contracted in conducting the business, defendant and Sackmann would not be entitled to any profit. Thereafter Goldbaum continued to conduct the business at the same place and under the same name until he went into bankruptcy. On August 5, 1908, he was adjudged a bankrupt, and the assets of the “Cape Liquor Company” were sold, realizing something like $500. Sackmann was also adjudged a bankrupt, with no assets, prior to the institution of this suit.
It appears that Sackmann and the defendant were each engaged in other business in the city of Cape' Girardeau, and did not want their connection with the “Cape Liquor Company” or with Goldbaum known, whatever that connection was. They were not publicly known as having an interest in the business, their names were not used upon stationery of the' conern nor apparently otherwise in connection with the business. .Plaintiff’s position, however, is that they were partners, and liable as such for the partnership debts.
The suit is for a liquor bill, for whiskeys sold to the “Cape Liquor Company” upon the order of Goldbaum, who was conducting the business. It appears that plaintiff’s salesman, one Robert Cone, obtained the order from Goldbaum on June 5, 1907, shortly prior to the time that the “Cape Liquor Company” opened its place of business. It is claimed by Cone that Goldbaum was introduced to Mm by Sackmann
The plaintiff called the defendant, Sackmann and Goldbaum as witnesses in its behalf, as well as Adolph Graf, president of plaintiff corporation, and Robert Cone, plaintiff’s salesman. It appears from the evidence that there was perhaps an original written agreement between Goldbaum, Sackmann and the defendant, .but if so it was not produced at the trial, neither was the agreement of September 3,1907. It was attempted by plaintiff to have these papers produced. It is not altogether clear that the first existed, and it was claimed that none of the three alleged partners had any copy of the last agreement. Goldbaum testified that he was unable to find his copy of it; Sackmann testified that he had destroyed his copy; and Wilson testified that he did not know what had become of his, if he ever had one.
We shall not undertake to set out the evidence in detail by which the plaintiff attempted to show that the defendant had allowed himself to be held out as a
The defendant offered no testimony and the cause was submitted to the jury upon six instructions given on behalf of the plaintiff and two on behalf of the defendant. One instruction requested by plaintiff was refused by the court. There was a verdict for the defendant, and after an unsuccessful motion for a new trial, and preserving exception to the overruling of said motion, the plaintiff has duly appealed to this court.
We may say at the outset that the evidence fell short of making out a case in which the defendant should be held liable as a partner by estoppel. The evidence fails to show that he permitted himself to be held out as a partner. On the contrary it appears that the defendant’s connection with the enterprise and with Goldbaum was kept secret, and defendant in' no way took part in the business or permitted his name to be used in any way in connection therewith. The testimony elicited by plaintiff for the purpose of showing that defendant had been held out as a partner utterly failed to make a case against defendant on that ground.
Learned counsel for appellant, however, earnestly insist that the evidence as a whole shows beyond question that a partnership actually existed between the defendant, Sackmann and Goldbaum, and say that the court erred in not so declaring. Upon the
And the evidence was not such as to justify the court in declaring as a matter of law that a partnership existed. So far as going to show that defendant was a partner in the business, it merely showed that the original agreement between the parties was that he was to share in the profits, if there were profits, in return for having indorsed Goldbanm’s notes, after the latter had been paid. So far as the evidence shows, there was no agreement that defendant and Sackmann were to bear any portion of the losses; and the mere participation in profits and losses, alone, would not necessarily make them partners in the business. Whether in fact a partnership existed between the parties or not depended upon their intention, to be discovered from the contract into which they had entered, and construed in the light of all the facts, and circumstances of the case.
In an early case in this court, Kelly v. Gaines, 24 Mo. App. 506, it was said: “A mere participation in the profits and loss does not necessarily constitute a partnership between the parties as so participating.” [Citing cases.] The court then quotes from
In Hughes v. Ewing, 162 Mo. 261, 62 S. W. 465, in which'the authorities on this subject are reviewed, the court quotes the following language as the modern doctrine on this subject: “Notwithstanding these differences of opinion as to the test of mutual agency, it is entirely clear that the old rule that sharing profits as profits made one a partner is overthroivn. It seems also to be true that the real test is that . . .
In Torbert v. Jeffrey, 161 Mo. 645, 61 S. W. 823, the court, speaking through Brace, J., said: “Participation in the profits and losses of a joint business or undertaking affords the usual, and perhaps the most cogent test of the existence of an intention to form a partnership. An agreement for such participation is not, however, a conclusive test and does not absolutely constitute a partnership as a conclusion of law, if other circumstances show that no partnership was intended. It is only prima facie pro'of which may be rebutted by evidence of other facts and circumstances (Italics ours.) [See, also, Diamond Creek, etc., Mining Co., v. Swope, 204 Mo. 48, 102 S. W. 561; Sawyer v. Burris, 141 Mo. App. 108, 121 S. W. 321; Mingus v. Bank, 136 Mo. App. 407, 117 S. W. 683; Bowen v. Epperson, 136 Mo. App. 571, 118 S. W. 528; Glore v. Dawson, 106 Mo. App. 107, 80 S. W. 55; Hazell v. Clark, 89 Mo. App. 78; Gilley Hardware, etc., Co. v. McCleverty, 89 Mo. App. 154; Cudahy v. Hibou, 92 Miss. 234, 18 L. R. A. (N. S.) 975, and notes; Brotherton v. Gilchrist, 144 Mich. 274; 115 Am. St. Rep. 397, and notes; 30 Cyc., p. 369, et seq.]
In the case before us, the evidence that the defendant was to participate in the profits, if there-were profits, was at most but prima fade evidence of an in
In Cudahy Packing Company v. Hibou, 92 Miss. 234, 18 L. R. A. 975, an agreement was entered into by the defendant, Hibou, and one Hoxie, whereby the former agreed to furnish to the latter money, goods, wares and merchandise, of the value of $4020.05, in order to enable the latter to engage in the saloon, restaurant and hotel business in Vicksburg, Mississippi. Hoxie agreed to devote his entire time to the management of the business and to repay Hibou in monthly installments, evidenced by a series of promissory notes executed by him, agreeing to pay interest thereon. It was agreed that Hoxie should draw out of the business for his own use ninety dollars per month; that the net profits of the business should be applied by him to the payment of the notes; and that Hibou should receive one-half of the net profits from the operation of the business, after all of said notes had been paid. The business was carried on under the name of “Hibou Exchange, Magruder Hoxie, Proprietor,” which appeared upon the cards, letterheads, etc., of the business. As in the case before us, the business did not prosper, and Hoxie later became a bankrupt. The suit was to hold Hibou liable as a partner for the price of a bill of goods purchased by Hoxie and used in the business. Upon the question of whether Hibou was to be held as a partner, the court said: “The question is whether the agreement made establishes a partnership as between the parties themselves. If it does not, it is clear in this case that there was no partnership as to third parties. There could be no reasonable
In the case before us we do not see that it would have made any essential difference had the defendant loaned the money directly to Groldbaum, taking his notes therefor, instead of indorsing the latter’s notes to secure the same. Defendant’s credit was pledged to secure the money. The evidence shows that he “indorsed” Goldbaum’s notes, from which we must conclude that the latter was made primarily liable for the debt, and evidently remained liable therefor regardless of the outcome of the enterprise.
It is also urged that by the agreement of September 3, 1907, the parties recognized that a partnership existed, and that defendant and Sackmann thereby sought to withdraw therefrom. This does not necessarily follow. If no partnership existed by virtue of the original agreement, certainly none was created by the second. It appears that by the latter, Groldbaum agreed to do . nothing more
The instructions given for plaintiff were quite as. favorable to it as the latter could require. The instruction asked by plaintiff and refused by the court,, sought to have the court declare that though the defendant and Sackmann never intended to become partners, and though it may have been agreed among defendant, Sackmann and Groldbaum that neither defendant nor Sackmann were to be partners in the business, nevertheless if by the terms of such agreement defendant was to sign notes for procuring the capital of the business, and was to share in the profits as-profits, then the relation that he had thereby assumed was that of partner.
The refusal of this instruction was proper, for the-reason, if for none other, that the sharing of profits,, as profits, alone, does not necessarily make one a partner. Nor do we think that the case falls within that class of cases where parties have misconceived the-legal effect of an agreement into which they have entered, which by its “phraseology and legal construction” creates a partnership “regardless of intent, or-even against its express repudiation of such intent.”"
Instruction No. 5, given at the request of the defendant, after being modified by the court, is complained of. This instruction told the jury that plaintiff was required to make out its case from the greater weight of the testimony; that the fact that defendant-
As to the point made by appellant that the lower •court erred in permitting leading questions to be asked the defendant, Sackmann and Groldbaum by defendant’s counsel on cross-examination, it is sufficient to ■say that these witnesses were called by plaintiff, and were thereby made its witnesses. And while more than ordinary latitude was allowable to plaintiff in its •examination of them (of which plaintiff availed itself), this did not deprive the defendant of the right to cross-examine them. On cross-examination it was not reversible error on the part of the court to permit leading questions to be asked them by defendant’s •counsel. The matter was one largely within the discretion of the trial court.
There was ample evidence to support the verdict; and we see no reversible error in the record. The case was well tried below, and has been very ably presented here by learned counsel on both sides. We think that the judgment was for the right party, and it is hereby affirmed. Reynolds, P. J., and Nortoni, J., concur.