Neville v. D'Oench

of contract and not damages for a is an breach It action money promised therein. writing payment for the action arising liability “implied assumpsit” plaintiff is an Defendant’s agree- breaching his wrongful conduct out of the allegations of the The ment, basis of the action. which is sole plaintiff to recover entitle petition, proof, if sustained would of the contract de- non-performance damages for the breach years brought within five after fendant, been had the action right of action accrued. 1317, applies five-year statute, Section

We hold not upon its face that the action was petition discloses since cause of action accrued the after years within five commenced trial court. properly sustained demurrer Ellison, court affirmed. Seddon judgment of the circuit GG., concur. by Ferguson, C., is foregoing a- opinion CURIAM:-—-The PER judges concur. All of the court. opinion of

dopted as the R. Powell D’Oench, L. F. v. H. R. L. Johnson O. Neville N. ’Oench, ; Appel D H. F. Louis Bank of St. International (2d) 85. W. S. lant. 34 January One, 1931.

Division Nagel Kirby, & Kroeger K. G. Curtis and H. W. for appellant. R. C. Clark and Walter Fordyce, Holliday White, é Bennett Mayne respondents. SEDDON, C.—Action in equity, commenced in the Court Circuit City of St. Louis on June wherein (respond-

ents here) seek an accounting and distribution of profits assets of alleged partnership between the plaintiffs and in- dividual defendants, D’Oeneh and Powell. allegations salient of plaintiffs’ bill, verified or petition, are as follows: “Plaintiffs, for their cause of action, state that about month of December, 1918, each separately entered agreement into a certain of partnership with the D’Oench, defendant and that later and to-wit, on or about December 6, 1919, both of plaintiffs, together entered into cer- agreement tain oral of partnership ratifying defining said separate agreements oral theretofore entered into each of the plaintiffs separately with defendant D’Oench. further Plaintiffs agreement partnership provided practice state that said for the of profession dentistry City Louis, the of in Missouri, the of St. plaintiffs D’Oeneh, partnership; the and a the defendant as that plaintiffs thereafter, soon were informed defendant D’Oench the agreement had into an of that said defendant made and entered partnership Powell, whereby with defendant the the said defend- partnership plain- Powell was to be admitted to said of ant the original D’Oench, upon same as the tiffs and defendant the terms thereupon partnership; that said to said partners the alleged defendant contract between accepted the said ratified and they have Powell; plaintiffs state that but D’Oeneh and defendant Powell, that and any direct contract with defendant no time D’Oench defendants between information as to said contract their the of D’Oench. said wholly statements and Powell is the derived agree- partnership the under the terms of “Plaintiffs state that D’Oench, the said and ment between and dentistry partnership, a profession were to of the Building University Club for a the a certain suite in lease of offices by defendant Louis, Missouri, to be City of taken in the St. partner- the said partnership; of that D’Dench the behalf I) of ’Oench-Neville; sum a that certain ship to be known be borrowed dollars was to money, to-wit, of thousand the sum ten pur- the equipment for of purchase partnership for the the the dollars to thousand of sum three making in the loan pose of a necessary connec- being 'Building, loan University said Club partner- by the leased the said offices lease on said with tion the placed in be partners was to earnings all of the ; of ship that the offices said the for fund; payable rent that the partnership common fund, partnership of said out paid be lease was to the said under earnings part- against the individual assessed was to be the expenses of miscellaneous alike; the that share ners, share of office em- pay hire, clerical telephone, including partnership, of paid out to be items, was laundry and similar ployees, earnings of individual against the funds, but assessed partnership necessary etc., supplies, alike; that share share partners, partner- of out paid be should the business of the conduct earnings individual against the assessed be should funds, but ship each; used amount to proportion partners each of account, which drawing receive towas partners of each that one-half exceed to case not each inwas drawing account said earnings excess that partner; individual said gross drawing ac- expenses, paying after partnership, said aforemen- indebtedness liquidate first paid be counts, was building com- loan equipment tioned, incurred sur- said indebtedness, said payment after pany; the net proportion partners said paid be towas plus officer fiscal towas D’Oench said each; that earnings of supervision charge have towas partnership said funds depositing partnership said books pay- accounts, Louis, collection St. Bank International affairs business taxes, payment bills, ment partnership. said partner- said oral pursuance to state further “Plaintiff's defendants to, plaintiffs referred hereinbefore agreement, ship large revenue dentistry and profession proceeded accounts funds partnership, said coming into D’Oench, said defendant of control supervision under to referred herein loan partnership said of profits of out plain- did partnership during said time at no off; that paid earnings gross their of cent per fifty excess draw herein tiffs defend- said that aver herein plaintiffs partnership, of said

CO. O' fifty per cent of D’Oench did at all times draw excess ant partnership agreement, and in ad' gross earnings, contrary said knowledge dition without thereto said defendant large sums plaintiffs herein, did draw and excessive consent partnership, the exact amounts money of said from the reserve fund accounting full is state, unless a plaintiffs herein are unable to fully set forth. affairs, more as hereinafter partnership had of the by said de- been notified they have further state that “Plaintiffs as partnership of said the offices D’Oench to vacate fendant plaintiffs, of said al- 1924, and that the services day July, first longer be no D’Oench, would though partners of said defendant if offices from said plaintiffs oust has needed, and threatened that, herein plaintiffs time; leave at that voluntarily plaintiffs did not accounts, partnership in said interest substantial large have a said defendant hand, but on supplies fixtures appliances, office contrary express D’Oeneh, partnership to the agreement, refuses partnership pursuant to make distribution assets to the agreement; if partnership plaintiffs said that said are terms of day July, 1924, on plain- said offices first required to leave carry of said deprived of the use offices cannot tiffs'will be themselves and detriment of their dentistry, their business damage by reason loss and irreparable will suffer patients, and thereof. further

“Plaintiffs state said that defendant D’Oench has, with- knowledge or plaintiffs, out the consent of said taken books of partnership offices, from said said and has on various occasions changes made in books ac- stated that certain had to be said incor- said books and accounts were partnership, said as counts of if believe, do believe, that rect; have reason to plaintiffs possession and control left accounts are said books and changed suit will accounts be books and the said said D’Oench D’Oench, to the detriment defendant of said means ways and herein. plaintiffs they “Plaintiffs further state believe, have reason to believe, books of partnership that the account of said will show do profits proportionate are plaintiffs entitled receive their part earnings $15,000; that in excess of amount due exact amount ways have no in which to ascertain the and means accounting full profits their unless partnership from said charge placed and a receiver partnership affairs made said said books be made proper audit can until partnership of said records, of accounts and and if said D permitted ’Oeneh is carry partnership on and conduct said affairs he has done irreparable damage herein will suffer past, loss profits of said deprived partnership. and be “Plaintiffs further they state that now have in their possession funds of said partnership in $900, excess of plaintiffs are ready and willing to deposit to the credit of partnership, the said but said defendant D’Oench has plaintiffs notified said that said funds in their possession would not be partnership received as funds, and has instructed accept said funds or employees said partnership said not to to consider said partners in said firm. “Plaintiffs they adequate remedy further state that have no law, but seek equity premises.” to do prayer The petition is injunction an against indi- vidual defendants, D’Oench Powell, restraining said defend- ants from conducting or carrying on the affairs and business of alleged partnership; that a receiver appointed be charge to take of the assets, accounts, books of and records of alleged part- nership ; that said books and impounded records be until an audit can be same; made of the the individual defendants be en- joined from withdrawing alleged the funds of the partnership on deposit in the International Bank of St. Louis, and that the de- bank enjoined fendant be paying deposit out funds on standing in “D’Oench-Neville;” the name of and for accounting an and distribution alleged the funds and assets partner- ship. joint

The and verified answer of the individual defendants, D’Oench and Powell, general is a denial of each every allegation petition. By stipulation of parties, the funds deposit on in the defendant bank during remained intact pendency action, so that defendant bank merely a nominal de- fendant, and filed no pleading in the cause and appearance made no on the trial. court, The trial January on 7, 1925, appointed Hon. M. William Kinsey as referee to hear all joined issues raised and plead- ings aforesaid, power with full rule and decide all matters of evidence, report and to findings (of all both fact law) to the

court speed. convenient A trial of the issues was had before referee, who thereafter, February filed his written report court, in the circuit setting findings forth his of fact and law, and recommending the form and content of a decree and judgment entered in the cause. report and recommenda- being tions of the referee to the adverse said defendant, time, in due exceptions filed written report referee.

Thereafter, 9, 1926, on March defendants D’Oench Powell, court, cause, denying leave of filed answer in amended allegation generally every petition, each and and affibma- way tively defense pleading following matter, by tbe new ’ bar to action: “For answer, -further defendants state that defendant H. F. D’Oench, at all plaintiffs’ times in petition, mentioned claimed proprietorship absolute of practice the business dentistry and con- ducted at University that certain suite of in offices Club Build- ing petition; plaintiffs’ referred in to that defendant D’Oeneh at divers times plaintiffs communicated to each of his claim of abso- lute proprietorship; D that defendant ’Oench established mode compensation for plaintiffs services H. L. 0. and R. Neville Johnson, Powell, and of defendant L. R. and to communicated plaintiffs, Powell, each of R. plaintiffs and to L. that defendant any compensation L. and defendant R. Powell not entitled to fixed; except plaintiffs acquiesced so statements that in the that H. D’Oeneh: F. and established the defendant the course of dealina’ acquiescence, in- plaintiffs’ D’Oench, that H. F. 'was defendant in said business permit continue plaintiffs duced to continue to to great injury; practice defendant, D’Oench’s to defendant of said deny proprietorship plaintiffs estopped are now to that- are dentistry practice.of defendant business and estopped compensation by him con- deny established to that services. stituted full their consideration for “For answer, further defendants state that all times mentioned plaintiffs’

in petition, defendant H. F. D’Oench claimed absolute proprietorship of practice the business and dentistry conducted at that University Building certain suite offices in the Club plaintiffs’ petition; St. Louis H. F. mentioned that defendant proprietorship D’Oench of said communicated his claim of absolute dentistry plaintiffs H. 0. Neville business to Johnson, Powell; defendant L. L. R. that R. and to defendant compensation for the services D’Oench a mode established plaintiffs Johnson, R. Pow- L. R. and defendant H. L. 0. Neville and ell, L. R. Powell and to defendant and communicated any compensa- were not entitled plaintiffs and defendants that except knowing of the claim fixed; well plaintiffs, so tion bus- proprietorship of said F. D’Oench absolute H. of defendant compensa- that the dentistry, intention of his practice of iness and by de- compensation established under the mode them given tion for full consideration constitute D’Oench should H. F. fendant relationship, services, establish action took no their until the date compensation, further any claim to to assert years than five cause; that, more in this filing petition plain- petition filing cause, prior in this date of practice perform business services continued tiffs Building St. University Club suite at the said dentistry in accepted compensation Louis, tbe distributed to them accord- ance compensation with the mode of established as aforesaid D’Oeneh; H. be barred their F. should acquiescence asserting up in claims set and laches from petition.”

Thereafter, March 1926, plaintiffs filed their motion to strike said amended answer defendants, D’Oench Powell, files; from and, on the day, plaintiffs same filed their motion to confirm and approve report the referee’s to enter decree and judgment thereon.

On January 17, 1927, the trial court made and entered an order sustaining plaintiffs’ motion to strike defendants’ amended answer files; overruling the exceptions of defendant D’Oench to report referee; sustaining plaintiffs’ motion to con- firm and approve report of the referee. Thereupon the trial court, sitting as a chancellor, entered a decree judgment favor plaintiffs against and the D’Oench, defendant wherein it adjudged and by court, decreed the alia, inter that “this cause OR,. be dismissed as to Powell; L. defendant plaintiff that H. Ne- 0.. ville have and recover out of the net available assets of group said of D’Oench-Neville $2,696.12; the sum of plaintiff and that R. L. Johnson have and recover out of the net available assets of said $15,994.66.” Dl’Oeneh-Neville the sum By pro- the terms and Harry visions of said judgment, decree and W. ap- Castlen was pointed receiver to collect the assets said and funds the professional group, D’Oench, and from pecuniary the defendant the respectively plaintiffs, Johnson; awarded to Neville amounts and action, including of the allowances made and costs to the .ref- the respectively, against were taxed receiver, plain- the and the eree against Johnson, D’Oench, the and defendant share tiffs, and Neville trial, unavailing motion for a new an the After alike. share and appeal to this court. an allowed D’Oench was The referee, evidence adduced con- the trial the before sisting of oral testimony oral tes- parties (much which of the timony has been abstract printed reduced to narrative form the documentary exhibits, record), comprising rec- and various ords, account, books of reflecting method accountings, audits and ,and manner keeping account, of ex- the books the distribution penses, group, con- and earnings, professional distribution of of the study stitute A a somewhat voluminous record. scrutinous analysis (as found us discloses entire record before tes- referee) in the conflict sharp irreconcilable there ’Oench, D timony hand, the defendant plaintiffs, one between existed relationship which hand, respecting on the other of the suite during their individual several occupancy University period rooms Building in the Club between 1924, un- February 1, 1919, respecting June the oral parties as derstandings individual agreements had between the joint earnings gross (during the afore- the distribution of the period) constituting professional said individuals several deducting joint gross the overhead group, from such after sup- group, and the cost of dental expenses professional office professional group. plies individual members used (as ref- found testimony by the It is uncontroverted agreement into, was entered eree) contract or no written relationship, their of their defining nature parties, between the personal tes- liabilities. The respective rights, their respective agreement oral to show positively timony tended into D’Oench, and entered made 'defendant plaintiffs and between of- dental the removal December, prior to on or about Olid) confirmed Building, thereafter University fices to the the nature respecting and between and defendant respective relationship, and professional and character of their liabilities, petition. in the alleged substantially rights pos- categorically and testimony, ’Oench, by personal defendant D itively any denied that partnership or like relation existed between parties, them, (D’Oench) and testified that alone he proprietor was the professional sole and absolute owner and during period aforesaid business conducted University Building, the rela- of rooms in Club and that suite during period, defendant D’Oench existing, tion aforesaid between individuals, constituting professional and the other three emuloyees. plain- merely Neither of of emnldver and understanding with de- any agreements or claims to tiffs have had Powell, individuals any time, of the respecting relation fendant at so constituting group, and each the nrofessional testified on the trial.

The defendant. engaged Powell that testified she had been Dr. first, January, D’Oench’s office since capacities: in various girl; assistant; laboratory then, as thereafter, office and and grad- chair; an to Dr. witness assistant at the dental that D’Oench June, that, 1918; uated in dentistrv in the removal after Building January Febru- or dental offices to the TJniversitv Club change and ary, 1939, relation between witness no was made in the du- constituting group; that her professional were, work, supervis- assisting dentist, laboratory of an ties those bookkeeping “anything I do offices, could ing dental salary, myself deter- a fixed received helpful;” that she to make month, which paid twice was D’Oench, which by Dr. mined her was used year year; time salary was increased that Dr. D’Oench to such an extent that “I very little any time to do other work;” that she never had had any conversations with either Dr. Neville or Dr. Johnson (plaintiffs) "regarding the conduct of the office, relationships in the office, or matters of business con- nected with the running office;” superintended she keeping of the books of account in the office under personal di- rection of Dr. D’Oench; that she drew the checks for withdrawals of the funds of professional the direction of Dr. D’Oench; that cheeks evidencing Dr. personal D’O'ench’s withdraw- als from the funds of professional group were drawn reg- at no ular times intervals, but at times "when (D’Oench) he needed it;” that Dr. D’Oench never mentioned to witness "how he was operating the office, or business in himself;” relation to "there was understanding between Dr. D’Oench me, when this new (in office the University Building) Club started, was the event there surplus, was a I was to receive proportion of surplus;” that witness did not believe that she present any conversation "when Dr. D’Oench any stated to one else proportion in surplus which the divided;” was to be that witness never had understanding agreement with Dr. D’Oench that she was permitted to be fifty per to draw cent of her individual gross earnings; and that witness could not recall D’Oench that Dr. had ever her, told precise words, (or business) that "the office his, running office,” and he was "had that witness impression” that Dr. “running D’Oench was the office.” On 7, 1918, November a written lease was executed and between the University Club Building Company, as lessor, and Dr. H. F. D’Oench, as lessee, for a term ending on 31, 1924, October for the use occupancy of a suite of ten rooms the seventh floor of University Club Building, as dental offices. Concurrently with lease, execution of said a supplemental written agreement was made executed by and between lessee, lessor and attached to and a part made lease, providing lessee, that the Dr. D’Oench, shall pay $500, the sum of proportion as his expenses costs altering completing demised suite of rooms in accordance with plans specifications of the archi- tects, and that Dr. D ’Oeneh shall lend to the University Club Build- ing Company, the lessor, the sum of $3,000 to provide funds lessor’s proportion of the cost of completing said suite of rooms. The University Club Building Company agreed covenanted Dr. D’Oeneh to pay off discharge said of $3,000, loan together with interest cent, thereon at six per per annum, according tenor of 60 monthly installment each, notes plus $50 the accrued loan, interest existing on the unpaid principal then $50 said installments, plus interest, accrued to be deducted from the accru- ing monthly rents for occupancy the and use of the prem- demised ises, amount, until the whole together $3,000, loan of said interest thereon, paid discharged. had been off and The evidence further shows that, some prior time February, 1919, the defendant D’Oench $7,000 borrowed upon individual credit and plaintiff (cid:127) Neville $3,000 borrowed upon his individual credit, which borrowed sums, aggregating $10,000, deposited were January, 1919, aas fund in the International Bank of St. Louis to the credit and account “D’Oench-Neville.” original The fund of $10,000 deposited as aforesaid was used the purpose of loan- ing $3,000 to the University Building Club Company in accordance with the terms supplemental lease agreement, paying $500 as agreed the lessee’s proportion of the cost of altering the demised suite of rooms the University Club Building, balance of the fund was used to furnish equip the suite of of- fices in the University Building Club with new and modern dental appliances equipment, including, X-ray machine. Neither Dr. nor Powell Dr. Johnson contributed amount original to the $10,000. fund $3,000 University loaned to the Club Build- ing Company paid discharged was afterwards off and by the Build- ing Company, to, deposited in, and was credited “D’Oeneh- Bank, $7,000 $3,- Neville” account in International subse- Neville, respectively, borrowed D’Oench and were quently discharged paid profes- out of the net group. opening of the “D’Oench-Ne- From and after the sional Louis, Bank of St. deposit with the International ville” account deposited uniformly in said funds professional group were account, bank upon checks all drawn said bank were account signed by plaintiff Neville, either D’Oench, defendant Dr. neither Johnson nor Dr. Powell. Subsequently to the borrow- original $10,000 ing Neville, individually D'rs. D’Oench and upon personal credit, money amounts of various were bor- rowed various times from in St. Louis in banks the name “D’Oench-Neville,” promissory evidencing such in- University to the Building. Club uniformly Cards were used

mountings for X-ray pictures the office, bearing taken in the the printed inscription, 709-14, X-ray Department, “D’Oench-Neville University Building, Club A Washington, at Grand St. Louis.” system accounting reflecting bookkeeping inaugurated, rent, telephone, help, the laundry, fact and other items of general expense uniformly charged, overhead office were share and against constituting professional alike, the four the share individuals charged group. supplies prorated, cost of dental used was against of the four individuals year, of each calendar each at the end an- constituting professional group, proportions in the the the earnings annual net earnings individual bore to the nual of each net adopted group. A card record was professional daily entire the University Club day of beginning the removal the kept, on by each of served the showing patients Building, the names group, nature of the constituting professional the four individuals charge serv- for each made patient, the rendered each the service service. the who rendered individual dentist rendered, the ice original entries, record of daily the constituted record cards Such kept by the of account books upon the entered thereafter and were instances, indiscrimi- were Patients, in most group. professional constituting professional the four individuals by the nately served to, assigned were patients certain although occasions on group, Checks patient. requested dentist particular by, the served ren- services payment of in patients, from received and remittances group, or professional an individual payable dered, whether “D;’Oench- endorsed uniformly were payable to the whether “D’Oench-Neville” deposited uniformly Neville,” Bank. International account business shows further The evidence by the prospered, and no losses were suffered group professional during group relation. continuance any time group at understanding no discloses, there was evidence far So constituting profes- the individuals any of between agreement losses, if such had been losses distribution group as sional years, after removal year, or two first For the suffered. portion surplus, major Building, University Club group used off and paying professional earnings, of the net $10,000 con- incurred in indebtedness original discharging the University of offices suite opening nection with mod- equipping the suite furnishing and in Building, Club group professional individual Each appliances. dental ern withdrawals or her keep ’Gench Dr. D persuaded only amount, to care sufficient a minimum funds group group funds Meanwhile, individual. of each living expenses deposit in tbe Bank International the credit and account rapidly “D’Oench-Neville” accumulated, and Dr. D’Oench conceived plan of investing professional accumulated interest-bearing consisting securities, of selected stocks and bonds. investing Dr. D’Oench commenced the accumulated earn- ings purchase April, 1920, De- by of such securities and cember, approxi- to 1922, the value these securities of amounted the through purchase $20,000. profit mate of A was realized the sum of year 1921, a distribution of a portion such the of securities. In on D’Oench, who testified surplus earnings by made Dr. the capital” $10,000, which “supposed used a trial that he the had ’’ ‘‘ of dis- distribution, which basis arbitrarily basis for fixed as a he to D’Oeneh; three-tenths to Dr. was as follows: six-tenths tribution nothing Johnson. Powell; to Dr. to Neville; Dr. one-tenth Dr. until earnings continued surplus the basis of distribution Such year distribution during which month 1922, December, earnings was the accumulated $20,000 purchased in securities upon basis the same manner, and same by Dr. D’Oench made surplus of distribution 1923, year the basis In of distribution. ’Oench,. D who testified Dr. changed earnings was accumulated dol- thousand using hypothetical an ten trial that “instead thousand hypothetical twelve office,I used an capital of lars as parts to 6.6 was: thereafter distribution dollars,” and the basis of Powell, and Dr. Neville, 1.1 to parts parts to Dr. 3.3 D’Oench, Dr. surplus of distribution of basis Dr. Johnson. The latter part 1. to 1924, June until group continued professional accounting commenced for an equitable action present when the distributions All such Johnson. plaintiffs, by the Neville books upon credited securities, were earnings, surplus the defendant group, at the direction professional “'bonuses.” specific find- following court the reported the trial to The referee ings of fact: writing .agreement was entered into between parties

“No is rights liabilities. There defining irreconcilable conflict their testimony plaintiffs adduced and that de- oral between agreement part whereby of their respect to that fendants engage they proposed to in were to be business profits necessity relying to the therefore, driven not am, I divided. did in parties what the order testimony, fact, but only the oral rights In this it and liabilities. connection their determine to only not denied the existence defendants say that proper D’Oench claims to have been but partnership, a by the business conducted proprietor sole originator two himself and between that, parties, defendant Powell, the relation was employer somewhat like of an and employee. “It is relevant and helpful somewhat briefly review the relation parties between the prior this suit February 1, in order to reach a correct conclusion as to what their relations after that date. referring

“Hereafter professional names, whether defendants, appears it that Dr. D’Oench had twenty-five for some thirty years practice been in the active dentistry, acquired high had a rank in profession, and was en- joying greater lucrative fully than attend he able to himself. That Dental he was then one the founders Louis, management in St. affairs. Clinic and was active in of its Lafayette Avenues, city. His Nebraska was located at this office graduate dentist, Neville, having “In secured 1907, Dr. become a growing small space Dr. D’Oench. He then office occupying a privilege of Dr. practice, paid D’Oench for laboratory also, in work, and addition part of the latter’s office turned to time from time some treating patients, treated his own to he than him latter had more D’Oench, when the by Dr. to over could do.

“D,r. then, later, Powell or sometime also with connected became office and business of Dr. D’Oench capacity in office- performing such, various girl, including keeping duties Dr. graduated from books, school, and later was a dental D’Oeneh’s dentistry. 1, 1919, practice February was authorized to Some Lafay- Dr. D’Oench removed to 1907, offices of after time occupied as the had Avenues, and used former one and Grand ette paid money Dr. rent Dr. exception Neville to been, with the had. At which he there space and accommodations for the D’Oench considerably. grown this In had practice Dr. Neville’s time prior a dental school some time from graduated having Dr. Johnson Avenue, on Shenandoah somewhere having an office thereto, and applica- whom he made Dr. to to introduction sought an pro- practice facilities to and other room granted was tion and him also some sent to patients, his own attended he fession, where of Dr. D’Oench also influence through the D’Oench, and Dr. monthly salary paid a clinic dental employment given was thus enabled to He earn D’Oench. by Dr. not clinic, but by the Dr. D’Oench. Dr. association through his livelihood modest a salary Dr. D’Oeneh. monthly regular a paid Powell originated Dr. D’Oench December, about “Sometime Lafayette at occupied offices removal of the looking plan nearing com- Building, then University Club to the Avenues Grand Neville, John- Drs. mover, prime he was pletion, n CO agreed son and Powell go During with him. negotiations looking proposed removal, they Dr. D’Oench. stated that would work together in the new location as group on a different basis which then prevailed. parties The then continuously thereafter referred engaged to themselves group prac- as a in the of dentistry. contemplated plan required tice for removal use of $10,000. agreed about to, did, D.'r. D’Oench raise his own $7,000, individual credit and Dr. Neville in manner like $3,000. raised Neither Dr. Powell Dr. Johnson contributed to nor agreed opened this fund. bank' account should be It was that a Bank of ‘D’Oeneh-Neville’ with the International name deposited credit, $10,000 St. Louis, where fund this and was used as follows: pay $500 “About for some alterations in original plan of University Building Club in order to make the suite of offices group

which the occupy intended to better adapted pur to their poses; $3,000 of the fund was loaned to the University Build Club ing Company pursuant to the terms of a lease of the offices taken Dr. lessee, name of D’Oeneh as and the balance was used in purchase equipment. of new and On modern removal from the Lafayette offices Grand Avenue, each of the took his equipment, own individual much of which after removal was turned in part payment equipment, for new and when the new suite equipped, University Building thus been Club had offices X-ray including an appliances, complete modern group conducting machine, dentistry in their new lo advantageous cation most them, to each of especially in view of expenses were, fact, fact that the overhead paid each, alike, except supplies charged share and share dental which were actually individual to each amount used him. name, group adopt partnership not but on did billheads appeared. individual of each John literature the names Dr. clinic short employment with dental for a his son continued required where it his entire point time, grew to a practice until his in time; paid his work clinic was not for out of the income of by group, but the clinic. The books and records kept were so general direction supervision of Dr. D’Oench under the with the year Powell, gross from Dr. as to show the income to year for services by group, money each member and all performed collected for deposited of the were by members to the credit of services subject Bank;, in the International to check ‘D’Oench-Neville’ Neville, both, Dr. usually D’Oench or or but was Dr. withdrawn either D’Oench. In addition to services, of Dr. income from checks on by Dr. on investments made D’Oench interest earned out of1 was there fund, operation from income X-ray also of an ma- the common cbine, which is claimed Dr. nearly Neville because all, he took all, of X-rays required by patients treated all members of the group, including own, for which he received no individual credit on the books.

"On or February 1, about already stated, as the new offices Building the University ready occupancy, Club were were equipped appliances with modern and first-class for the dentistry, in, group and the so-called moved each of whom not others, only patients, but, interchange, those of treated his own whole, an individual group so that functioned but each made given but himself, credit, for which he was record of work done only any performed by patient were one whether services to one in one bill group, they were' included nr more members fund. deposited the common which, paid, when patient testimony plain- according to agreed, beginning it was In the drawing as a group should receive member of tiffs, that each gross fifty of his cent per not to exceed use personal for his account expenses overhead cover reserved to earnings, balance opened, of books set $10,000 loan, and a repayment moneys receipts and disbursements kept of the record which a reference further group, to by the borrowed earned both will be made. ex- apparently exceeded their gross income of the

"The fifty reserved, they had per cent thereof pectations, out expenses, 31, 1920, paid current overhead prior to December only, not thereon borrowed on $10,000 loan and interest repaid also $3,000 sum this Neville. The D’Oench and Drs. credit Building Company repaid to the University Club loaned to the $6,994.40 invested in been 31, 1923 and December group prior to including year 1920, and to and early year As as the equipment. knowledge consent previous without 1923, Dr. fund, not belonging in reserve money the interest-bearing used plaintiffs, purchase securi- expenses, to pay overhead needed possible contin- a fund to meet future on hand keep to thus ties, and expenses. He necessary pay such the amount gencies in addition $20,000 of such par securi- value much hand as on one time had longer any necessity for thus nowas having there concluded ties, and distribution fund, made a reserve he using taken money himself, unequal group and members to other thereof Dr. of each. relation having percentage no amounts, ‘bomts,’ it as a and so had distribution this characterized D’Oench books. entered purchase of securities "The thus made did not result fund; on contrary, reserve there a .profit

loss re- paid from interest both and increased sulting, market value. When Dr. D’Oeneli part handed to Dr. Neville the latter, allotted to the he was asked for explanation, some which Dr. D’Oench then failed give, promised but purchase later. The of these distribution by Dr. securities D’Oench particular significance has no case this other than his disclosing attitude and frame of mind toward other members group. of the

“On 1919, some undisclosed date in Dr. D’Oench Drs. informed Johnson Neville and membership he had admitted Dr. Powell to group, upon in the existing same terms then between himself particular them, no but mention was then made in detail toas what those terms were. accepted

“Drs. Neville and Johnson Dr. D’Oench’s statement any thereof without confirmation Dr. Powell. Her relations only they disclosed her are own testimony and what did. monthly gross earnings average Dr. 1919,

“In Neville John- approximately per month, $325 and those Dr. services was per month. $200 $220 son June, 1924, average by Dr-. increased earned Neville had

“In per per month, $900 and that of Dr. Johnson to about $800 about month. which much dissatisfied the manner

“Both had become funds, handling agent of the its D’Oeneh, fiscal Dr. out distributed to each of them amounts particularly as to the

but between earnings. personal in a This resulted conference of his net Johnson during Neville and early which Drs. June, them group, based affairs of the a settlement demanded petition, which alleged contract conditions terms and Dr. who the attention called to specifically were then with other members into contract he had entered denied that Neville by Drs. conditions claimed group upon the terms con- On the thereof. any recollection had Johnson, or that he business proprietor was the that he in effect trary, he claimed its affairs as right to control had he group; that by the carried on Drs. Neville own, and that funds equipment if its compensation for just and fair received already Johnson group. members services evidence, that disclosed far as time, so first was the “This con- business proprietorship claimed specifically D’Oench Dr. group. by the ducted $1,000 out distribution of directed D’Oeneh Dr. “In one, six, three basis of group on the earnings surplus Dr. $300, given $600, Dr. Neville took D’Oench Dr. Johnson. Dr. none $100, Powell 52

“In surplus the distribution of Dr. 1923, made as directed D’Oench, be took 6.6 parts, given parts, Dr. 3.3 Neville was Dr. Pow- ell 1.1 parts, Dr. part. Johnson 1 distributions,

“These books, as entered on the were called bonuses. that, working “Dr. Powell group, gross testified while with the her fund; paid went into the salary common that she was a fixed per month, which time; was increased from time to and that she never any agreement understanding had Johnson, or with Drs. Neville or them, either as to the terms and conditions which the group giving was to In expressed function. her testimony, she satis- salary working faction with paid the sums while with the her group, against and apparently has claim other no members thereof liquidated Furthermore, to be proceeding. this is not she possession belonged money property control of which group. A parties, commendable made than effort was other Powell, Dr. compromise their differences without resort and settle litigation, failed, resulting commencement of which this suit 20, June 1924. 23, June parties

“On entered into a stipulation, which appears pages in full on 3 8to both inclusive, of volume transcript evidence, whereby they agreed, among things, moneys prior all collected to June 21, 1924, for services, dental paid would be into the common fund to the credit of ‘D’Oench-Ne- ville;’ that expenses the current overhead for June, 1924, should be paid fund, out undisposed otherwise remain of pend- ing suit; determination this that Drs. Neville and Johnson have use of they should until offices could find location, another longer August but not than until 1924, and that would longer function no as a but would each on his own ac- agreed upon. count. All was done as “They agreed also that Drs. might Neville and Johnson select take, upon leaving, part such equipment that was owned furnished on and nue, them removal from Lafayette Grand and Ave- did, they which equipment and that paid rest for out of fund in possession the common should remain Dr. paid appraised him at to be accounted and its value, if so or- dered, final determination of this suit. all begun, moneys suit

“At time this borrowed on the credit group beginning of Drs. D’Oench and Neville finance the repaid with interest out of their cominon fund; had been all new purchased, all expense, had been equipment overhead manner, except share and share alike, for in like paid been current June, 1924. month of only by plaintiffs’ for the As shown expenses furnishings dental appraisal J, an the Univer Exhibit office request Dr. D Building was made at ’O.'enchas of Au sity Club gust 1, 1924, and tbe removal of Drs. Neville Johnson, after $8,661.95 appears replacement that the it value was $6,296.43. question No value was sound raised as to the correct appraisal. depreciation $2,365.52. ness of this It shows a Exhib by plaintiffs D X its offered in reflect the financial trans evidence ‘D’ as shown their books and actions records. request ’Oench, upon D

prepared proprietor Dr. at the basis ‘K’ business. was That he the sole ship, to-wit: owner Johnson, upon request Drs. Neville and the basis prepared if relation between members as partnership of a kept with each member thereof individual accounts had been separate gross amount of his with the dental been credited in which he earned, interest, X-ray and other income pro rata services, his share expense, repayment $10,- of overhead charged with his share from time to time denomi distributed to him amounts 000 loan ‘salary’ work ‘bonus-’ £D’ either or actual as in Exhibit nated Th^ Noll, "W. performed Otto exhibits two these preparing ‘D’ case, although in this a witness accountant public certified public account Ernst, & certified by Ernst certified purports be to ants. figures appearing accuracy of the as to the raised question is “No two question which of the leaving open the exhibits, two these did, to do. In- or intended correctly reflects what more ‘K’ col- under X-Ray prorated service is interest and come ’ ‘ parties. the several Income Gross umn! 16, 1924, there was July that on M shows Exhibit “Plaintiffs’ ‘D’Oench-Ne- credit Bank to the International deposit Referee, the International request- of the At the $4,785.32. ville,’ showing February 18, as exhibit this balanced has- Bank ‘D’Oench-Nc- credit standing to the $4,708.49 then a balance ’ ville. K, analysis appears D it that the total Exhibits

“From X-ray services of services, earned and interest from dental net income $10,000 repayment of the loan group, after each member expenses, except those all overhead thereon, and .the interest paid shares, total amount June, 1924, equal and the month 21, 1924, as ‘bonus,’ was on June ‘salary’ or other as so-called each follows:

Dr. D’Oench: income.$54,834.70 net “Total amount 67,122.00 salary or bonus. him as received Amount receipts 12,287.30 .

Excess “Dr. Neville-.

“Total amount net .,.$33,494.50 income salary received Mm as 30,207.00 Amount bonus or . Balance .$3,287.50 due

“Dr. Powell: .$18,126.13

“Total amount net income salary ber 13,989.39 Amount received or bonus. .$4,136.74 Balance due

“Dr. Johnson: .$28,796.11

“Total amount net income salary 12,210.07 him as bonus. Amount received ..$16,586.04 Balance due against other, D K,

“I and find have checked Exhibits one although question no figures correct, raised above trial. correctness on the tending agreement showing, show, “There is no evidence length group understanding of as to or between the members they together work such. during which continue to as would time nearly a'l, all, lie did or Dr. Neville claims that “While $15,000, is no basis in the evi- X-ray amounting over there work, to credit for the whole there- particular which award him upon to dence kept in amount a contrary appears it the total of, but on the earned, prorated mem- account, to each separate and, like interest plaintiffs’ K, part a evi- on group shown Exhibit as ber specially those mentioned A of exhibits than number dence. is re- evidence, force of which probative in above offered copies of Dr. D’Oench’s except mentioned, duplicate in those so flected partner- existence a proof of the returns, offered in income tax of them examination group. A critical ship between members duplicate returns that conclude these hearing me to leads since the I, alleged partnership, the existence prove to do tend not case.” in this reject them as evidence therefore, following “Findings of trial court reported to referee The recommended to findings referee upon which Law,” Fact entered: be a court that decree ex- found to specifically facts repetition, the without adopt, I “1. foregoing statement. ist in the more or members either one law, matter find, I as a “2. dis- 1924, to to elect June right, group had so-called operating, been theretofore they which under agreement solve if accounting, an group and, members from other demand to necessary, equity suit institute this to enforce such account- ing.

“3. I as find, law, agreement a matter of that the into entered defendants, between and the and the transactions there- under, partnership legal do not technical constitute as sense them, especially between and this true as to the relation of the de- i^ group. evidence, whole, Dr. fendant Powell to the considered as a defendants, by plaintiffs not common does disclose a intent or Dr. defendant bound in become agreement co-partnership. they agreement law, find,

“4. I a matter of venture, joint in which the cost overhead fact into was a entered use, for their common expense offices equipment a suite of minimizing expense alike, was to be borne share and share thus practice den- group was to each, each member of the but otherwise enjoy in- the net receive and tistry and to own account his own practice. come from his ‘£ find, 5. I as a matter law fact; that the D ’Oench owner, was not the sole and entitled to control the distribution of the pay net income of the so as to for each other member thereof services sum sums respective less or more than amounts the net derived from or her income his services. any specific

“6. I find, law, agree- as a matter of the absence whereby ment paid each should more less member/ than net produced by services, each would be en- income much, less, titled to as net income. but no more or than his Considering Dr. long D’Oench’s high standing career and “1. a dentist, and his conception part and dominant organiza- tion of the group, would it not him have been unreasonable for stipulated have payment to himself of a bonus out of the net income the-group before distribution of the remainder, though even organization was beneficial all members alike, thereof but the evidence does not establish the of any stipulation. existence such

“8. find, I fact, as matter of law and that each the member of group common, joint, had a if not a property interest the acquired by group during funds operations, the its this and that for reason the are entitled to maintain this suit for an account ing Breimeyer under Bottling the of authority Company, v. 136 Mo. 84; App. Ry. Co., Ballew Hdw. v. Mo. Pac. Co. Mo. 1. c. 478. find,

“9. I as a matter law, of since the defendant Dr. Powell makes no claim for an accounting, against either as the plaintiffs, against as her co-defendant Dr. D ’Oench, any and disclaims interest property money the still belonging to the group, that this her, suit should be dismissed to as fact, that the de- stated, find,

“10. As I a matter of heretofore belonging Dr D ’Oench the common fund fendant has drawn ont of income; net that $12,287.30, in excess of his group the sum of $3,287.50 out of plaintiff balance Dr. entitled to a Neville is still to a would entitled income; Dr. Powell be defendant his net group and she $4,136.74, a member of if treated as balance of Johnson plaintiff Dr. therefor; and that the had made claim earnings. his net $16,586.04 out entitled to a balance of depreciation has been a fact, that find, there “11. I as a matter com- for, out of the furnishings paid office dental in the value deprecia- that this $2,365.52, and group in the sum mon fund against bal- alike, share charged back, share tion should be reduc- group, thus overpaid, to members ances, either due sum Dr. D’Oench to the defendant ing overpaid to the amount Dr. plaintiff due to unpaid balance reducing the $11,695.92, due to the de- apparently reducing the balance $2',696.12, Neville to due to reducing the balance $3,545.36, Powell to Dr. fendant $15,994.66. Dr. Johnson to plaintiff belonging group

“12. I find out that the net available assets respective due the mentioned above balances $18,690.78 paid, aggregating sum of can consist be following: “ (a) furnishings $6,296.43, as Dental office of the sound value of J, now in possession Plaintiffs’ which are shown Exhibit stipulation appearing which, under the Dr. D’Oench and defendant agreed to transcript evidence, he has page 6, 1, on volume aggregating the now for, with from June account interest $6,926.07. sum of “(b) deposit now Money with the International Bank in St. ‘ ’ D

Louis to the credit amounting, ’Oench-Neville in- bank terest, $4,708.49. to the sum of

“(c) And a refund Dr. D’Oench of the sum $7,056.22 of his excess withdrawals out of the common fund of the group over profits. of net above share “I recommend that a decree be (1) entered herein dismissing this suit as to the defendant L. Powell; (2) R>. finding the issues otherwise joined in favor of plaintiffs, against the defendant H. F'. D ’Oench, except the issue as to whether or not a technical relation of partnership agreed parties, finding to which issue in favor of defendant F. D’Oench; (3) H. plaintiff H. O. Neville is entitled to have and recover out of the net available assets $2,696.12; (4) sum of plaintiff E. L. John- son is entitled to have and recover out of the net available assets of $15,994.66; (5) sum of appointed that a receiver with authority the defendant II. herein collect F. D’Oench from $6,926.07, present tbe sum of tbe value of assets now in bis bands consisting furnisbings, $7,056.22, of dental office sum of be- also tbe ing part $11,695.92 overpaid tbe tbe to bim out of net $4,708.49 deposit with Inter- group, tbe and the sum of now on tbe ‘D’Oench-Neville;’ (6) national Bank St. Louis to tbe credit of pay H. D such further, F. be ordered to that defendant Dench $6,926.07 $7,056.22 respectively, said sums of tbe receiver joint pay- II. check plaintiff O. Neville issue their that be and tbe amount for the said order of such receiver said bank to tbe able collected, $4,708.49; that, when therewith, to-wit: so deposited $2,696.12, and H. O. Neville by paying amount received disburse tbe plaintiffs herein.” $15,994.66, tbe Johnson R. L. substantially follows trial court of tbe judgment decree Tbe tbe findings referee, except of tbe recommendations findings: following specific tbe makes trial court claim Powell, no defendant, has made L. R. That “First. co-defend- against her or tbe against accounting, either F. D ’Oench. H. ant, sole D:’Oench, not defendant, H. F. That the “Second. tbe net income distribution of tbe control and entitled owner member pay each other as to so D’Oencb-Neville said group of more or sums less service, sum her a D’Oench-Neville, for bis her his or from derived net income amounts respective than tbe services. ‘‘ agreement entered into between the plaintiffs and That tbe Third. thereunder, dis- conduct and transaction D’Oench, and tbe in a partners D’Oench were and defendant tbe close that equipment expense overhead costs of joint which tbe venture share and common use was to be borne offices for their of a suite group of minimizing expense tbe of each said alike, thus share for tbe group liability of member tbe D’Oench-Neville; each of said out of the funds joint to be borne venture was such debts of of said D’Oencb-Neville and each D’Oencb-Neville, member receive account and to own dentistry bis or her was to practice. bis own or her income net enjoy tbe group members of said of tbe or more one That either “Fourth. dis- 20, 1924, to elect to right, June bad D’Oench-Neville of D’Oencb-Neville members which tbe under agreement solve tbe members from other demand and to operating, been heretofore group member of tbe accounting, and that each group of tbe prop- in tbe joint, interest common, if not bad D’Oebch-Neville during operations, by tbe acquired funds erty maintain this entitled to are fact, plaintiffs this that, reason accounting. for an action “Fifth. That D’Oench defendant has drawn out of the common fund, belonging to D group ’Oench-Neville, $12,287.30 said in of excess income; plaintiff of his H. net that 0. Neville is still entitled to a $3,287.50; balance of that the L. R. defendant Powell would be en- $4,136.74, if any titled to a balance of claim therefor was made amount; plaintiff her to said and that the R. L. Johnson, is entitled $16,586.04. to a balance ‘‘ finds The court further has depreciation Sixth. that there been a furnishings office D group in the value the dental ’Oench- $2,365.52, and that Neville in the sum this amount deprecia- charged back, against alike, share should and share tion be the bal- overpaid, to members of the ances, group due or either D’Oench- overpaid reducing amounts Neville, D thus defendant ’O’enchto reducing unpaid $11,695.92, plain- sum balance due to the reducing $2,696.12, EL Neville to balance due tiff 0. to defendant by her, if claimed $3,545.36, reducing L. Powell to R. the balance $15,994.66.” R. L. Johnson plaintiff due to appellant, The presents assignments D’Oeneh, separate nine assign- error, which, however, may three grouped ruled as ments, (1) viz.: finding partnership the trial court erred in that a defendants; (2) relation court plaintiffs existed between the trial erred in im- confirming report, thereby approving the referee’s thereby plying a contract law, between a matter failing to find method and respecting and rule contract group basis of professional distribution of the net should be in course of inferred fact from conduct and continuous sustaining dealing (3) parties; trial erred in court plaintiffs’ from the motion amended answer to strike defendants’ assignments of error files. We will discuss and rule the three order as stated above. assigned

I. Error finding and conclusion of the trial chancellor that “the and defendant D’Oench partners were joint in a venture.” finding Such and conclusion of the trial ehan-

cellor only slight degree differs from that of the referee, found, who as a law, matter of “the agreement entered into between and the de fendants, and the thereunder, transactions not do part constitute a nership legal technical them; sense as between . . . and that agreement which they in fact entered joint venture, into a was expense, the cost overhead equipment of a suite of offices borne, use, for their common was to be alike, share and share thus mini mizing expense each, but otherwise each group member dentistry to. own account and receive enjoy practice.” income his own strenuously net It throughout trial of the contended upon the trial chancellor referee, before the before the action report, that he referee’s exceptions to the hearing of defendant’s busi- proprietor, owner, or absolute (D’Oench) was the sole and be- the relation professional practice of the ness and professional constituting the persons himself tween findings of employees. employer and merely that conten- against such chancellor and the trial both the referee “the defend- being the that D’Oeneh, to effect tion of the defendant dis- control owner, entitled to the sole the was not D’Oench ant group.” (professional) net income the of tribution plaintiffs and existing between relation of the issue the view As we relation be nothing, whether such little, or matters defendants, it joint adven or as a partnership, as a characterized denominated “special com as a aptly defined has been “joint A adventure” ture. venture a specific some in persons, where more of twro or bination corporate or partnership any actual without sought jointly is profit distinguishing the comparing and In J.C. designation.” 841.] [33 Corpus in 33 it is said partnership, joint adventure of relations concept of com legal is aas joint adventure “A 842: Juris, 841, of our American creature purely the origin. It is recent parative character, such enterprise a limited an of law common At courts. merely an as regarded in laiv adventure, ivas joint a called is now as] attempt to no made courts the partnership, kind informal Eng the ease in is still Such other. one from the distinguish the the courts, about the States the United Canada; but in in land dis a draw to it convenient began find century, to last the middle up a building gradually is there hence them, and between tinction adventures joint relation the applicable law American body of So far of partners. relation apply may not may or fact slight in very so slight; is relations two divergence between rules same governed they are that asserted generally is it those especially rights, regards substantial as is true This law. very differ marked ais there equity; in courts enforceable rela two respects of law of courts the attitude ence between grievances redress not assume will courts these tions, for whereas between controversies their aid they lend will partners, between wherein actions determine will hear adventurers, joint mere a share for contract, or for breach associate -his sues themof one advances for contribution or venture, losses or profits, jurisdic retain equity still notwithstanding courts' thereto, made matters.” these tion in partner- adventure, joint a contract law that is the settled It agreement by showing express be established ship, need not whole, inferred, may implied contract parties, such

60 part, 847; parties. from tbe 47 acts and conduct C. J. C. [33 649; Knapp Hanley, App. 353, 361; French, J. v. 108 Mo. Hudson v. App. Corpus Juris, Mo. In it “Re- is said: 181.] ported determining cases are of whether scant benefit joint employer contract sustain relation of adventurers or analysis employee, since in the final the facts of each case must de- question. person rendering termine the ... If services ‘the original promoter enterprise, party himself the or an he has usually joint been held to interest therein adventurer have an with others, capital if he himself contributes especially so ’’ enterprise.

The documentary evidence, including the books of account of the professional group, adduced on trial before the referee, establishes beyond dispute that the four constituting individuals uniformly charged, share and alike, share general expenses overhead of the group, such rent, as office telephones, cleri- cal hire,'laundry, and items; similar and that the of all cost dental supplies charged used was prorated also against the four indi- constituting viduals proportions annual earnings net of each individual bore to the annual net group. system entire Such accounting and bookkeeping, which (by concededly testimony) inaugurated own by the defend- ant D.’Oench, and which was under personal his immediate supervis- ion direction, and to our minds, utterly wholly and incompatible with the contention of D’Oeneh, the defendant throughout made the trial, that he was the sole and absolute owner of professional the practice, business and existing and that the relation between himself and the other constituting professional individuals group the merely employer employees. that of If, as contended defend- D’Oench, ant the relation between him and the individuals of other group the that of merely employer employees, ap- it would pear wholly gesture been a charged have useless to have as- constituting sessed the individuals group, the as mere em- ployees D’Oench, general part of the expenses overhead professional practice business, of the or with the cost of dental individually supplies by them used the furtherance of busi- the D’Oench, practice employer. ness and as mere The elaborate system accounting uniformly prevailed and intricate throughout period (more of the relation than five the entire years) wholly unnecessary would been and useless had de- have the himself to be the sole absolute D’Oench deemed owner fendant practice group, business and and to be the professional of the group. individuals of the other three The employer mere evidencing the acts conduct of the documentary alone, evidence support warrant conclusively, to strongly, if not parties, tends referee and the trial chan- both findings conclusions cellor joint that a relation existed between the four individuals con- stituting group, whether properly such relation may be denomi- find, nated as a technical partnership, or joint as a adventure. The ings and conclusions of both the referee and the trial chancellor are amply and substantially supported by the evidence in the cause, and we find no reversible error therein.. joint Whether the relation of parties, which we find and hold

to be amply shown and established evidence, be denominated as a partnership, joint or as a adventure, each individual member of professional group was entitled to share in profits derived joint from such relation enterprise, and to maintain an action equity an accounting and distribution of the profits. C. J. [47 803; 789, 861, C. J. 867.] Corpus In 33 Juris, equitable principle clearly is thus stated: “Since joint each member of a adventure, by virtue of his contribution to capital therein, invested performance of services in acquires connection therewith property interest and business of the enterprise, necessary it consequence follows as a character undertaking that he is entitled to share in profits right derived therefrom. . . . profits share implies duty upon necessarily part having member possession or control of them to account to the other members pay proportionate over to share, performance each his and the duty by appropriate this can be enforced action.” Notwithstanding theory single appellant II. D ’Oench, stren- uously urged throughout and adhered to referee, the trial before the hearing upon exceptions ref- report

eree’s chancellor, namely, before the trial that D’Oench was the sole and absolute owner of professional business of the and, therefore, owner, right as sole had the absolute to arbitrarily control and the manner determine and basis dis- earnings tribution of net professional group the and income of the (under employer the contended relation employees), ap- of and the pellant urges upon appeal (to quote now the that evidence herein language brief) “compels that, his the of conclusion with the the ac- all a quiescence parties, of of the consistent of method distribution during period of the of the office maintained entire was the defendants, of the association of and and con- business this actual) dealing (real evidenced the sistent of defined and and mode understanding contract; their parties constituted our con- of the and period conduct over such time estab- tention is that this course was, parties entitled and that the are to dis- lishes the contract what other,” basis, Arguing no the afore- on this and on tribution and the referee that urges appellant, premise, the quoted conclusions, in that findings and their erred in trial chancellor the findings conclu- and chancellor, by their trial the and the referee by implication parties for the a contract to make attempted sions, by, defined and is parties the between the contract law, whereas parties as the dealing between the course from, inferred be must profes- earnings of the net made distribution respects the association. during period of the sional error, appellant assignment of support of contention his In Weinsberg St. v. 225, 239, and Mo. Christopher, 318 v. State cites 553, 565. App. Co., Mo. Cordage Louis defendant, prosecution awas supra, case, Christopher The it makes which State of this aof statute violation Christopher, for place or other office, store keep an any person to for misdemeanor stocks, grain and selling of buying pretended permitted where the for paying receiving or intention without products form The sold. so property delivering the bought, or property so making, for the Christopher, defendant by used contract printed specific- margins, grain on purchases customers, of his account your account by for us made transactions “all that ally provided pay- property, delivery receipt actual contemplate agreed upon an submitted tried was cause The therefor.” ment agreed defend- stipulated was it facts,.wherein statement delivery made physical no actual was there that Christopher, ant, customers, that defendant’s by defendant’s purchased grain deliv- physical actual no was there that intended customers contract that therein ruled We purchased. grain ery of although spe- customers, his defendant by the into entered cifically grain was delivery of actual an that face reciting upon its facts, stipulated light construed be was to contemplated, grain delivery made physical no actual there namely that cus- defendant’s customers, and defendant’s by the purchased delivery physical actual no was to there intended tomers : case Christopher remarked court ruling, this so grain. In upon acted they understood are construed are “Contracts case, instant D’Oench, in appellant, The them.” by this applied used language as foregoing aid calls case. Christopher court plain- brought action was an supra, case, Weinsberg compensation recovery of surgeon, for physician tiff, operation an performing plaintiff rendered services surgical in defend- corporation, iniured defendant employee by plaintiff rendered services plant, manufacturing ant’s corpora- defendant president request instance cause therein contended It tion. one wherein law imply the declines to a contract, wherefore it de- plaintiff proof volved the express to establish an contract with the corporation, failing plaintiff in which was not en- titled compensation to recover for his services. The St. Louis Court reviewing Appeals, after evidence, ruled that the contract amply substantially had been fact, established a matter of al- though express the contract was not in all its details. Said the Court of Appeals, speaking through (135 J. Nortoni, App. 565) Mo. 1. : c. “However, we do that, not understand because there was no exnre^s promise, contract, it follows may there not be an actual as distin- guished implied Although from one imply law. the law will not ' contract, one if there be an actual expressed. it need not be [Morrell v. Lawrence, 203 Mo. appears It the court not found 373.] only president that the requested services, but he intended the defendant pay conclusively should appears therefor. plain- It tiff charge. intended to In circumstances, these con- fact of a parties tract between testimony.” is established question We do not principles of law forego- announced in the eases, ing apuellant assignment support cited of his errm* findings but we do not find the conclusions referee the trial chancellor to principles be in contravention of the of law reading announced in A analysis cited cases. close of the findings and chancellor, conclusions the referee and trial whole, entirety and as a leads us to conclusion ref- that the attempted eree and the not trial chancellor to make a contract have parties by law, implication but that the referee and the trial testimony chancellor, personal all and from evidence, including the facts and circumstances in the acts and con- na.rties, par- of the found contract duct the existence between the ties as a matter of fact. premise argument contention, appellant’s to the ef- that, parties, a consistent acquiescence fect “with the all of the (dental) earnings office method of distribution of the association, during period business the entire

maintained defendants,” testimony supported by plain- not plaintiffs and tiffs, testimony Both plaintiffs. conflict and is direct quite acquiesced that neither them positively testified pro- net of distribution and basis method defend- and made arbitrarily determined group, as fessional Dr. D’Oench to asked reneatedlv each had and that D’Oencb. ant earnings, or of the net distribution explanation of the basis of make explanation Dr. had -nromised to D’Oench which income, never later, explanation Dr. D’Oench time some make dissolution of the until time of the either of made to time, plaintiffs’ according relation, for the first .evi- when 64 proprietor absolute dence, D’Oench claimed be the sole Dr. to group. express practice The professional of the business of the acquiescence in the plaintiffs’

findings as to the fact of the referee clearly- thus group is of the of the net of distribution basis (plaintiffs) had become muóh “Both report: in referee’s stated ’Oench, agent D as which Dr. fiscal in with the manner dissatisfied amounts as to funds, particularly handling group, its earnings. This a resulted in net out of each them to distributed during which 1924, early June, in them personal conference between of the a settlement (plaintiffs) demanded and Johnson Drs. Neville con- of the terms and conditions group, upon the based of the affairs called to specifically then which were petition, alleged in the tract any had entered into that he ’Oench, D denied Dr. who the attention con- group upon the terms and of the with members contract Johnson, he by Drs. Neville ditions claimed D’Oench) (Dr. claimed in contrary, he On the recollection thereof. on carried business of the proprietor was the he effect that equipment' if its its affairs right to control group; he had a al- Johnson had Neville and Drs. own, his funds were mem- services as for their compensation just and fair ready received by the disclosed time, so far as first group. This was the of the bers of the evidence, proprietorship claimed specifically DDr. ’Oench when group.” conducted business conflict” irreconcilable “there is an found that referee While the agree their part of to that respect testimony in the of distri and basis method with having do or contract ment credibility of nevertheless profits of the net bution instance, at first testimony was, of their witnesses reported -referee, who the1, determination least, a matter report of chancellor, which the trial and law to both fact findings of chancellor, after the trial and confirmed approved the referee was referee, and before trial on the adduced of the evidence a review report. referee’s exceptions hearing of defendants’ a full after always reserved has cases, this court equity While, appeal on may evidence, that we order whole right review the ourselves we nevertheless equity, thereby do novo, and de weigh and decide questions of involving close equity cases that, in said ofttimes have given should conflicting, deference evidence fact, and where Ridg v. chancellor. [Pfotenhauer trial findings of the us to And 182, 217 Mo. Huffman, 192.] 536; v. Huffman 529, 307 Mo. way, where, force peculiar operates with equity eases rule of our rests of fact issue of an case, the determination instant Bivert, v. credibility of witnesses. [Creamer upon largely op rule 682, 307 Mo. Williams, 705.] 480; Keener v. 473, Mo. court, when the appellate in an greater force added erates findings approved by court or chancellor been referee have Schwartz, cited; v. eases Davis below. R. C. L. there [23 155 U. S. 636.] findings of-

Although disposed accord deference we are herein, our chancellor an examination and the trial the referee part findings us to the same leads evidence the cause the entire profes- of conduct fact law. The course and conclusions of to, and out they held themselves group; sional in which the manner system with, patients,- the method patrons dealt unvarying uniformly kept; which their books of account of the member earnings each of individual in the which manner n groupwere credited in- respective of account books upon the indi- each charging of uniform group; the of the dividuals general over- alike, with the share group', share and of the vidual charging each of and enterprise, expenses professional head propor- used, the in supplies the dental group with individual of the bore individual earnings of each net the annual that or ratio tion cre- to warrant group tend earnings entire annual net the —all plain- of testimony personal to, the support give in, and dence D ’Oench of the defendant and contention the claim tiffs, refute and to parties the between agreement contract actual nowas there that the of distribution .ioint basis and method the respecting absolute sole and the as that and group, the right to had the practice, and business professional the proprietor according group, the earnings of joint distribute, the toor withhold whim. and caprice arbitrary his facts the together all parties, with the oral testimonv the From chan- the trial and referee- the evidence, both circumstances and the member of each that lawof conclusion the reached alike cellor net proportion enjoy, as his and receive was entitled his from income derived earnings or net profits law, we conclusion Such practice. and services individual her from drawn inferred be reasonably to think, properly is uniformly group was member each fact indisputable earn- group with by the kept account books upon the credited when services, individual or her derived income ings or with conjunction considered viewed is fact indisputable such circum- facts the other parties testimony oral neither opinion therefore We are in evidence. stances findings conclusions by chancellor, trial nor referee by implication for contract a make attempted herein, and terms existence appellant, law, contended by the referee found parties, between contract actual reasonably drawn properly chancellor, were trial inferred from all the facts evidence, and circumstances con- junction testimony with the parties. oral adduced thei no We find error in the judgment decree and of the court nisi. n III. Error is assigned sustaining in the action of the trial court plaintiffs’ motion to strike defendants’ amended answer from the files. The amended long answer was filed after defendants

trial of referee, filing the action before the after report. the referee’s The trial before the referee was upon original defendants, answer of which general was a mere denial of the averments of the petition. The pleaded equitable amended answer special de- fenses of waiver, estoppel and part laches on plaintiffs. Such defenses are affirmative, and specially must pleaded in the answer in order to be available to a 1242; defendant. C. J. [21 idem, 257; Coleman v. Co., 620, 631; Insurance 273 Mo. Turner v. Edmonston, 210 They Mo. pleaded were not 428.] original upon answer which the action was referee, tried before the and were extent, to some least, theory single inconsistent with the presented and contended defendants the trial before the referee, theory was that defendant D’Oench was the sole proprietor professional absolute business conducted and that existing the relation between defendant D’Oench merely employer individuals of employees. answer, The effect of the if amended had same permitted been court by pleading the trial stand and remain a cause, change would been to work substantial have in the pleaded original defense answer, compelled and to have plaintiffs to meet new and different issues which were raised and presented action, necessarily after and which would trial have required production of different and additional evidence plaintiffs, presented by in order to new meet the issues the amended answer. liberality pleadings allowing amendments to is accorded

While Procedure, justice, of Civil under our Code furtherance such only properly are under our statute “when amendments allowable change substantially claim not or defense.” the amendment does 1274, Such has been our uniform R. S. and con- 1919.] [Sec. Growney, 154 holding [Joyce 253, statute. v. Mo. under the sistent 113; 94, 236 Drainage Co., Railroad Mo. 263; District v. River Little rulings upon 277 Reynolds, Mo. Our own rel. v. 21.] ex State prevailing with the rule of entire accord subject are in clearly Corpus Juris, 21 thus stated in cases, which rule is equity permitted is or sometimes amended a defendant “While 537: up original, not defense raised to set answer supplemental when tfie and was known done where be will not existed defense this 67 original answer filed, or where the defense is not consistent with the ends justice, new where operating issues sur- as a prise would thereby raised, be unless is prospect there some support evidence to the amendment can be obtained. general As a rule court will not permit an amendment which will entirely change theory the nature and especially after pro- defense* late, litigation tracted stage and at a of the case.” most,

At largely is it discretionary the trial permit court to pleadings amended to be filed time, out of and such discretion of the trial will court not be interfered with on appeal it unless ob- viously has been abused. v. Moss, 447, 450; Mo. [Carr State ex Reynolds, rel. v. 277 Mo. We find no abuse of 21.] discretion herein, the trial especially chancellor in view of the fact the amended answer worked a change substantial original theory defendant, defense and long and was filed after the trial referee, very before the and on the hearing eve exceptions report. to the referee’s judgment It follows that the decree and of the circuit court should is affirmed, it so ordered. and Ferguson, CC., Ellison concur. The foregoing PER CURIAM: opinion by Seddon, C., adopted opinion judges All the court. concur. A. His Next Friend, Russell Theodore Beebe, Carl Beebe, v. City, Appellant. (2d) S. W. 57. Kansas One, January 5,

Division 1931. notes “D’Oench-Neville, by H. signed, F. D’Oench.” Ac- debtedness were subsequent testimony “these cording to purpose taking borrowings up notes made were for sole original $10,000 debts.” incurrence University Club offices dental Upon the removal January Building February, full names of the four in- professional constituting dividuals were inscribed suite of rooms. door of the Billheads, entrance and sta- office uniformly used, bearing tionery, thereon the full names of constituting professional individuals group. four Such bill- stationery had prior not been used and office removal heads

Case Details

Case Name: Neville v. D'Oench

Court Name: Supreme Court of Missouri

Date Published: Jan 5, 1931

Citation: 34 S.W.2d 491

Court Abbreviation: Mo.