Miller v. Hale

96 Mo. App. 427 | Mo. Ct. App. | 1902

ELLISON, J.

Plaintiff and defendant jointly entered into an agreement with Mrs. Moore and Mrs. St. Clair whereby they jointly undertook to do and perform the duties of architects in the erection and construction of a certain school building- in the City of Columbia, for which they were to receive as compensation four per cent of the cost of said building. Payments were made from time to time, some to plaintiff and others to defendant, but in the aggregate, those made to defendant were of much larger amount than those to plaintiff; so that defendant received more than one-half the whole sum due under the contract aforesaid. After the contract had been performed plaintiff demanded a settlement with defendant to the end that he might receive half of the whole sum paid. Defendant refused and plaintiff then filed the present bill in the circuit court asking an accounting and a decree for what might be found due him. The trial court found in his favor in the sum of $520.09' and defendant has come to this conrt for relief.

(1) Whether these parties were technically partners in relation to this contract, their obligations to the owners of the building and between themselves were of a dike nature so far as concerns the principle governing this .case.. Nothing appearing to the contrary it will be presumed that they were partners as to this particular , contract. Robinson v. Anderson, 20 Beav. 98.

The law is that as between themselves, the contract of partnership being silent, partners are entitled to share equally in the compensation for their labor. The courts decline to look into the question of which performed the more onerous duties, and whether one was more skillful, or more industrious than the other. An adjustment of that nature is not demanded by the nature of the contractual association and would often prove to be impractical. Robinson v. Anderson, supra; Reybold v. Jefferson, 1 Harr. 401; Gray v. Hamil, 82 Georgia 375; Cameron v. Francis Co., 26 Ohio St. 190. The precise question has been decided in this State. Bennett v. Russell, 34 Mo. 524.

(2) But a partner, especially one for a special purpose, may abandon the contract and thereby forfeit his right to an equal share of the proceeds of the business. Henry v. Bassett, 75 Mo. 89; Denver v. Roane, 99 U. S. 355; Marsh’s Appeal, 69 Pa. St. 30; Zell’s Appeal, 126 Pa. St. 329. The result of the case in the trial court is such as to show that th'e chancellor found there was no abandonment by plaintiff. He may well have so found from the evidence of the defendant alone.

■ (3) Defendant calls in aid the exception that while the rule of law may be as above stated, yet the park ners may agree among themselves what duties each will perform in the common business, and that if one willfully fails to perform his agreed part, allowance should be made to the other therefor. Marsh’s Appeal, 69 Pa. St.; Zell’s Appeal, 126 Pa. St. 329; Denver v. Roane, 99 U. S. 355; Airey v. Barham, 29 Beav. 620. Defendant claims that there was a special agreement dividing the parts of the work .between them and that plaintiff failed and refused to perform his part. According to the allegation of the answer defendant has received nearly eight hundred dollars more than half of the sum due under the joint contract, and as there was only allowed plaintiff $520.09, the court must have allowed to the defendant more than $200 for a partial failure -on plaintiff’s part to perform fully what he and defendant agreed between themselves he should perform. An examination of the evidence in this connection has satisfied us that, in this respect, the defendant has no •cause to complain of the justness of the court’s conclusion. The judgment will be affirmed.

All concur.