197 Mo. App. 286 | Mo. Ct. App. | 1917
This is an action, originally instituted before a justice of the peace, upon an account for goods, consisting of automobile tires, tubes, etc., alleged to have been sold and delivered, on and between April 8 and August 8, 1912, to the defendants, Edward W. Ward, Oscar J. Mueller and Adolph Grohe, as copartners, doing business under the name and style of New York Motor Car Company. The defendants other than Oscar J. Mueller made no defense, and judgment went against them by default. Mueller filed a verified answer denying that he was ever a partner with Ward and Grohe, doing business as the New York Motor Car Company. The issue as to whether or not Mueller was a member of the partnership was the only matter tried in the circuit court. There was no dispute as to the fact that the goods in question were sold and delivered by plaintiff to those conducting the business under the name “New York Motor Car Company.”
The cause was tried by the court sitting as a jury, a jury having been waived; and at the close of plain-tiff’s, case the court gave a peremptory instruction, in
A written contract was introduced in evidence executed February 6, 19121, between the Elmore Manufactuing Co. of Clyde, Ohio, and the “New York Motor Car Co.” This was a contract whereby the Elmore Manufacturing Co., “the manufacturer,” licensed and authorized the “New York Motor Car Co.,” “the dealer,” to sell “Elmore” automobiles, at certain discounts from the list prices thereof, in consideration of certain covenants and agreements on the part of the New York Motor Car Company. We are not here concerned with' the lengthy terms of this agreement. It was signed in behalf of the New York Motor Car Company as follows, viz: “New York Motor Car Company, per Osear J. Mueller, Dealer.” The names, Edward W. Ward, B. Grohe and Osear J. Mueller also appear at the end of the instrument, but whether or not they were signed by these parties does not appear.
It appears that defendants Ward and Grohe were copartners doing business as the New York Motor Car Company, prior to February, 1912, at which time defendant Mueller became connected with the business.
Defendant Ward, testifying for plaintiff, said: “I am a member of the firm of the New York Motor Car Company, and Mr. Oscar J. Mueller had connections with this firm. He was connected with it in regard to selling automobiles. Mr. Mueller was in it, Mr. Grohe and myself. We made no agreement in writing at the time we entered into this arrangement. . . . We had two cars of one type, what we termed a small car and a large car. . . . Mr. Mueller was not to get any of the profits out of the small car, but out of the large
On cross-examination the witness testified in part as follows: “I don’t know how to explain the character of the agreement (between the defendants). It was for the buying of automobiles, for the agency proposition in buying automobiles from the Elmore Manufacturing Company. Mr. Grohe and-1 had an opportunity to secure the agency for the Elmore Manufacturing Company. Mr. Grohe saw Mr. Mueller in regard to it. The Elmore Motor Car Co., would not extend credit to us, and Mr. Grohe made all arrangements with Mr. Mueller. Afterwards Mr. Mueller and I talked it over.”
This witness further testified that defendant Mueller received some of the goods purchased from plaintiff, included within the account sued upon; that the tires thus acquired, with the exception of four, were received by defendants Grohe and Mueller; and that defendant Mueller turned over one of them to the owner of the premises occupied by the New York Motor Car Co. in payment of rent.
The only other witness called by plaintiff was one Wolf, plaintiff’s bookkeeper. For our purposes it is unnecessary to consider his testimony.
Appellant insists thát the evidence adduced made a prima-facie showing of the existence of a partnership relation between defendant Mueller and his codefendants Ward and Grohe, at the time when plaintiff’s goods were sold to the firm; and that the court consequently erred in holding, as a matter of law, that plaintiff could not recover against defendant Mueller. A careful' ex
Having these principles in mind, we think that the court could not properly declare, as a matter of law, that there was no substantial evidence that Mueller was a partner with his codefendants. It is true that there is no evidence of a holding out on the part of defendant Mueller, to this plaintiff,, so as to make Mueller a partner by estoppel; but there is evidence, we think, tending in law to show the existence of an actual partnership between the three parties named.
The law governing cases of this character will be readily found in the pronouncements of our courts in the many adjudicated cases in this- state dealing with the subject. Among them are: Campbell et al. v. Dent, 54 Mo. 333; Torbert v. Jeffrey, 161 Mo. 465, 61 S. W.
The case made by plaintiff does not rest merely upon a presumption arising from participation in profits and losses; though such participation is presumptive evidence of a partnership relation. It is well settled that such participation is not a conclusive test of the existence of a partnership (Torbert v. Jeffrey, supra), and the presumption which might otherwise arise therefrom may be dispelled, it is. held, by proof of the actual facts' showing that no partnership was created or intended. [Diamond Creek etc. Mining Co. v. Swope, supra; Ellis v. Brand, 176 Mo. App. 383, 158 S. W. 705; and authorities cited.] The real test is the intention of the parties; and each case must be determined upon its own peculiar facts. [Diamond Creek etc. Mining Co. v. Swope, supra.]
Not only does the witness Ward say that Mueller was in the firm, but plaintiff’s evidence otherwise tends at least to show that defendant Mueller joined with his codefendants as a principal in the enterprise in question, in which all had a community of interest. Mueller was to share in the profits, and the proof warrants the inference, at least, that he lent his credit to the business at the time of the making of the very important contract with the Elmore Company, which he executed
It is true that the firm, the3 New York Motor Car Company, did, it is said,- two classes of business, one a repair business in which defendant Mueller did not participate as to profits — though- he received his repairs without charge. But the mere fact that by the terms of the agreement or understanding between the parties Mueller was not to share equally with the others in the profits, if any, arising from the conduct of the business as a whole, does not preclude the existence of a partnership relation. The matter was one of contract between the parties, though where the agreement is silent on the subject partners share equally in the profits. [See Miller v. Hale, 96 Mo. App. 427, 70 S. W. 258.]
In short the plaintiff’s evidence, we think, unrebutted and uncontrolled by anything to the contrary, with the inferences that naturally spring therefrom, would warrant a finding that defendant Mueller was a partner. ■ It may be that evidence adduced by this defendant will put an entirely different aspect upon the facts of the case, and justify a finding for him at the hands of the jury. But we are now considering the propriety of the court’s ruling on the demurrer to the
The judgment will accordingly be reversed and the cause remanded. It is so ordered.