40 Mo. App. 425 | Mo. Ct. App. | 1890
As to the material facts of this controversy there is no conflict, the evidence showing substantially about the following: In the spring of 1887, plaintiff Bruen, a large dealer and owner of stock and speed horses at Burlington, Iowa, engaged one Abbott to take charge of his racers for the season of 1887. Abbott was to travel with the horses, enter and trot them at the various places on the “circuit,” and as compensation for his services was to receive one-half of the net winnings. If there were no winnings then all the expenses were to be borne by Bruen. It was, too, definitely understood that all entries for races should be in the name of Bruen. Among the horses thus intrusted by Bruen to Abbott was a gelding named “Egmont” and a mare “ Zoe K.” Abbott began his tour in June, traveling from place to place, entering and racing the animals, winning some purses, and appeared at the races advertised and held by the defendant Kansas City Fair Association, in October, 1887. At some of these races Bruen had appeared, and it seems had detected Abbott entering and racing the horses in the name of one Rouse, instead of in the name of Bruen, as instructed. Complaint was made at Bes Moines and Abbott agreed not to do so again. But, on Bruen’s arrival at Kansas City on October 12, he found Abbott repeating the same violation of instructions — that the
I. In the foregoing statement of facts we have intentionally eliminated matters which we deem wholly immaterial to a correct understanding of the controlling features of this controversy. It matters not whether Bruen was absolute owner of the horses Egmont and Zoe K., or was simply given them in charge and control for the racing season of 1887, to be by him used as he saw fit. Bruen was for that season the owner, and absolutely entitled to all their earnings.
And, as to the occurrences at Kansas City, it is sufficient to say that arrangements as to entrance fees were made satisfactory to the fair association, the fees and charges were paid ; and the question is to whom should the association have paid the winnings, after deducting
II. The arrangement between the plaintiff Bruen and Abbott did not constitute a partnership. It wanted the necessary community of profits and losses to effect a copartnership. Abbott was the hired agent of Bruen, and his measure of compensation was the one-half of the net earnings of the horses. Bruen was liable for all" expenses in the first place. If there were no winnings, then the entire loss was Bruen’s loss. If there were winnings, then Abbott was to have for his services the one-half thereof after the payment of expenses. This was not a partnership. Bank of Odessa v. Jennings, 18 Mo. App. 660; Gill v. Ferris, 82 Mo. 167; Donnell v. Harshe, 67 Mo. 170; Campbell v. Dent, 54 Mo. 325. When, then, Abbott entered the horses Egmont and Zoe K. at Kansas City in the name of Rouse he acted as agent for Bruen, but violated instructions in failing to make such entries in the name of his principal. Bruen, however, appeared after such entries were made, thus far (while complaining) ratified the agent’s acts, and permitted the horses to compete, But, while thus adopting the contract of entry, thus made by the agent, Bruen denied the agent’s authority to collect the proceeds arising from the contract of entry, and gave notice thereof to the fair association, demanding payment of the winnings, and warning the officers not to pay the same to Abbott, or his substitute Rouse.
Even though Brfien’s agent had contracted with the fair association in his own name, yet, upon discovery by the association that Bruen was the principal, it was its duty, upon demand of the principal, to hold such winnings for him. Although Bruen’s name did not appear in the contract of entry, he, as principal, had the right to all the benefits arising from a contract made by his agent, and might sue for and recover the
To us, then, this seems a case where the principal intervenes and demands the beneficial results of a contract made by his agent, and when the third party, in face of a demand and warning by the principal, insisted upon payment over to the agent, after the agent’s authority had been extinguished, then such payment was at its peril, and it must respond again to the demand of the principal. In our opinion, then, the admitted facts of this case warrant a judgment for plaintiff on both counts of the petition. Of course, while the plaintiff adopts the contracts of entry, in so. far as to demand 'benefits arising therefrom, he must also assume the burdens attached, and proper allowances should be made for the delinquent entrance fees admitted to aggregate two hundred and fifty-six dollars.
The judgment then of the circuit court is reversed and cause remanded with directions to enter a judgment for plaintiff on both counts of the petition; that is, five hundred dollars on the first count and one hundred and twenty-five dollars on the second count, aggregating six hundred and twenty-five dollars. From which said six hundred and twenty-five dollars defendant is entitled to have deducted the sum of two hundred and fifty-six dollars, leaving a balance due plaintiff, October 13, 1887, of three hundred and sixty-nine dollars, which, with six per cent, interest per annum, added from said October 13, 1887, should be the judgment against defendant.
