Bush v. Bush

89 Mo. 360 | Mo. | 1886

Henry, C. J.

The plaintiffs and defendant are brothers, sons of Jordan Bush, deceased, who, when this suit was brought, was, and for twenty years .prior had been, of unsound mind and incapable of transacting business. The defendant, F. M. Bush, in 1858, assumed the control and management of his father’s business, that of a farmer. F. M. Bush was the eldest of the children and the others worked on the farm under the direction of F. M., both before and after they became of age. About 1875 Herndon Bush, one of the plaintiffs, left the farm and was engaged as salesman and clerk in mercantile establishments in Callaway county until the spring or summer of 1880. In three of the four firms by which he was employed within that period F. M.was a partner. The other plaintiffs remained on the farm' working under F.. M. As the boys arrived of age F.. M. made contracts with them to work on the farm. In 1874, with Allen, for three years’ service at two hundred and forty dollars per annum, for which ($720) he gave him his note executed by himself. He also gave Allen a note for one hundred and five dollars signed Jordan Bush, per F. M. Bush. The boys while working on the farm claimed certain stock which was fed and raised on the farm. This stock was managed by F. M., who sold a portion of it with other stock belonging to their father, Jordan, but the greater portion remained there until after the alleged partnership, for a settlement of which this suit was brought, was formed. July 1, 1878, F. M., Samuel, and Allen entered into a partnership agreement in writing, which, by its terms, was to continue for life, if not sooner dissolved by mutual consent. By that agreement it was stipulated that Allen and Samuel should share.equally with F. M. in all of the latter’s services for their father for twenty years, to J une 1, 1878, and he was to share equally with them in their services for their father, Allen having served three years from December 31, 1877, and Samuel one year, February 1, 1878. That they should share equally in all the real and personal property which they respectively owned in Callaway county, and they assumed all debts then owing by either of them, or their fattier; and of all clothing purchased for either of them a correct account should be kept and accounts balanced at the end of the year. All other extras that either indulged in were to be at his own expense, true accounts to be kept of same and accounts to be balanced at the end of each year. There were other stipulations which it is unnecessary to mention.

After that agreement was executed they continued to work on the farm. It seems that Allen and F. M. had some disagreement in relation to some notes and accounts Allen had collected for mercantile firms of which F. M. was a member, Allen claiming that he had kept back a portion ofjthe money so collected as his commission, for collections made. In November, 1880, F. M. sued him for this money, but. prior to this, March 17,1880, the four brothers met and discussed the formation of a partnership between them all, and the result was the execution by all of them of the following written agree- ’ ment:

“ Witnesseth: We and each of us pledge and in honor bind ourselves to enter into an equal partnership in all respects, both with regard to our personal property and real estate, wherever we may have it, either in Callaway county or elsewhere, and the money that each of ns may have on hand shall be disposed of in the name of each of us combined as one firm. We and each of us, F."M., Herndon, Allen,, and Samuel Bush agree to stand together as brothers and partners, and put forth our best endeavors to promote each other’s best interests. This March 17, 1880.” Signed by each of them. The next day, it seems, in pursuance of a verbal agreement, F. M. and Allen went to Faltón and had Mr. Bailey, an attorney, write a contract as follows :

“This agreement entered into this eighteenth day ■of March, 1880, by and between F. M. Bnsh, A. D. Bash, Herndon Bush and Samuel Bush, all of the county of Callaway, in the state of Missouri, witnesseth that said parties have and do hereby form :and enter into a co-partnership for the purpose oí farming and general trading, and doing such other business as in the future said parties may desire or choose. ■Thatsaid partnership shall be known by the firm name 'and style of F. M. Bush & Brothers. That each of said parties hereby turns over, and transfers to said firm all property of every description now owned and held by him, including money, notes and accounts, real and personal property, said accounts to include any charges either of said parties may have against Jordan Bush, their father, for s ervices rendered him since their arrival rof full age. Said property as turned over to said firm, together with the increase thereof, to constitute the as- ■ sets of said firm, and that each of said parties is to own an equal share in said firm assets. That said partnership shall exist so long as all of said'parties live, unless by consent of all it be sooner dissolved. And in case that two ■ of said parties object to engaging in any business trans•action or speculation the others shall' have no .power to .engage in or transact the same.” Signed by F. M., A. D. and S. Bush, and on the same day F. M. deposited in the Southern Bank fourteen hundred dollars in the name and to the credit of F. M. Bush & Brothers, which he afterwards drew out.

The agreement was never signed by Herndon Bush, -.and there is testimony to the effect that he was advised not to sign it by the defendant, F. M. Bush. Herndon .gave as a reason for not signing it “that Allen and F. M. were continually having ups and downs and he wanted to see if they would not be reconciled before he signed the contract.” In July or August, 1880, F. M. Bush asked the probate court to appoint a guardian for Ms father, which was done. Francis Brandon having been appointed he proceeded ■ to take an inventory and Herndon, Allen and Samuel pointed out their individual property, claiming it as their own, not mentioning the partnership.

The matter was by the court referred to a referee who, on the testimony, found that the four brothers were. partners, and proceeded to state the account between them. The court approved the report and entered judgment in accordance with it, over exceptions filed by defendant, from which he has appealed.

This is an anomalous case. Here a co-partnership agreement was entered into, first by three of the brothers, one of whom was the defendant. This was in July, 1878. Nearly two years afterwards all four of the brothers enter into another, by which they agreed (in the present tense) to stand together as brothers and partners, and put forth their best endeavors to promote each other’s best interests. It seems then to have been in the contemplation of the parties that another agreement should be executed more specific in its provisions. That one of that character was prepared and executed by three of the brothers, the plaintiff being one, but that Herndon, the other brother, did not sign it. Still business was conducted by them in the partnership name of F. M. Bush & Bros. The-defendant himself treated it as a partnership ; deposited money to the credit of the firm, and did other acts in recognition of the partnership. True, other acts were” done by him and the others which seem to be inconsistent with the existence of a partnership. Herndon, who never signed the last written agreement, one ¡of the plaintiffs is alleging the partnership, while F. M., who signed them all, is contesting the existence of the partnership. He derived benefits from the partnership, and while so doing recognized its existence, and I do not think that it lies in his mouth now to deny th« partnership. The agreement of March 17, 1880, established a partnership relation between all the parties, if the subsequent agreement had never been made. Its existence did not depend upon the subsequent agreement, which was only intended as an adjunct to specify more particularly the terms of the partnership. The partnership was not dissolved by the failure of Herndon to sign the latter paper unless he so intended and they so accepted his refusal to do so. The existence of a partnership or not often depends upon the intention of the parties — always as between the parties themselves.

After hearing all the evidence the referee found the existence of the alleged partnership, and his finding and report were approved by the court. It is a tangled thread and the referee and the judge of the trial court were far more, competent than we to unravel it. 'We do not think that the partnership contemplated by the contract sued on was based upon an intended misuse of Jordan Bush’s property. His property is not mentioned in either of the written instruments as a part of that embraced in the partnership, nor is there any stipulation in either of said agreements from which it is a fair inference that it was intended as a means of collecting claims-against Jordan Bush for their services, or to appropriate-his property to their use.

We are all of the opinion that the judgment should be, and it is, therefore, affirmed. - -----