85 Mo. 398 | Mo. | 1884
Plaintiff commenced an action of ejectment in the circuit court of St. Louis against the defendant to recover possession of the undivided half of a leasehold, estate in the property known as “Debar’s Grand Opera House. ’ ’ The answer sets up that on the fifteenth of June, 1877, and prior thereto defendant, Ben DeBar, and Alice Wakefield, through her trustee, Taylor, were partners under the style of “ DeBar’s Grand Opera House,” engaged in the business of running and managing a theatre on the premises, which was partnership property and used as such. That they were interested in said property and business as follows : DeBar one-half, defendant one-sixth, and Alice Wakefield one-third. That on the
Both parties claim through Ben DeBar. The property was a leasehold, the term expiring on the first day of January, 1882, and was the property known as the “ Grand Opera House,” in the city of St. Louis. On the thirteenth of May, 1873, DeBar acquired this leasehold from Truman Martin and wife, and on the twenty-third day of May, 1873, a contract was entered into between DeBar and the trustee of Alice L. Wakefield, she being a married woman, by which said . Alice was to acquire a one-third interest in said theatre property and its profits. The agreement is in the following words: “This memoranda of agreement 'made and entered into this twenty-third day of May, A. D. 1873, by and between Benedict DeBar and Daniel G.. Taylor, trustee for Mrs. Alice Wakefield, witnesseth: That in consideration of three thousand, three hundred and thirty-three dollars and thirty-three cents in cash paid, and the payment of the additional sum of ten thousand dollars, for which a promissory note has this day been given, it is agreed by Ben DeBar that said Daniel G. Taylor, as such trustee, shall have one-third of all the profits derived from the
„ “Ben. DeBae, [l. s.]
“Dan’l G. Tayloe, [l. s.]
“Trustee of Alice L. Wakefield, [l. s.] ”
The deferred payments mentioned in the agreement were paid out of the profits of the theater, and a deed was executed to the trustee of the said Alice on or about the twenty-sixth of April, 1875, conveying said one-third interest. Another deed covering the same purchase was made between these parties, dated December 13, 1873. Both deeds convey this same interest, subject to the provisions of said agreement; and in both deeds John Q,
By deed dated December 15, 1873, DeBar and wife conveyed to Charles P. Chouteau, defendant in this action, an undivided one-sixth interest in the same property; the deed contains the following provision: “This conveyance, however, being subject to the terms and conditions of a certain contract made between the parties hereto on the twenty-third day of May, 1873, which contract is in its terms and provisions similar • to a certain other contract of same date between Benedict DeBar and Daniel Gr. Taylor, trustee of Alice Wakefield.” This deed, too, is executed by John Gr. Priest, as attorney in fact, of Harriet DeBar, on the nineteenth day of September, 1873, and is duly recorded. “That Ben DeBar, D. Gr. Taylor, as trustee of Mrs. Alice B. Wakefield, and Charles P. Chouteau, in the month of May, A. D. 1873, each acquired an undivided interest in the leasehold premises in controversy herein, said interests being respectively one-half, one-third, and one-sixth, and that ■said leasehold consisted of a theatre building and all the furniture, scenery and properties therein contained. That said building, furniture, etc., was acquired, as aforesaid, for the express purpose of being operated as a theatre, by the parties above named, for their mutual benefit and profit, under the management of Ben DeBar; and the same was so operated from May, 1873, until August, 1877, when said DeBar died. That said business, during the period last specified, by agreement of said parties, was conducted by said parties in the following manner: Books of account were kept by Ben DeBar in the name of ‘DeBar’s Grrand Opera House,’ wherein were entered all the receipts and expenses of the business conducted therein, including the ground-rent of said leasehold; and at the end of each theatrical season the net profits were divided among the three
The circuit court found for the defendant, holding, as a matter of law, under the facts, that DeBar, Mrs.
I. The first and vital question in the case is as to the partnership. Under the facts, were DeBar, Mrs. Wakefield, through her trustee, and Chouteau partners % No general rule can be laid down which .will determine the question of partnership in every case. Each case must, in great measure, be governed by the facts and circumstances surrounding it. Donnell v. Harshe, 67 Mo. 170. It is held in this state that a mere division of profits does not necessarily constitute'the parties partners. McCauley v. Cleveland, 21 Mo. 439; Campbell v. Dent, 54 Mo. 325; Donnell v. Harshe, 67 Mo. 170. In Parsons on Partnership it is said: £ £ And although it is undoubtedly 'true that in much the greater number of partnerships there is a community of loss as well as of profits, the weight of authority, as well as of reason, seems to be decidedly in favor of the rule that there may be a legal and valid partnership, although one or more of the partners are guaranteed by the others against loss. It would seem there must be a community of interest for business purposes.” Pars, on Part. 41. In Maclay v. Williams, 48 Mo. 234, it was said: ££ An agreement that something shall be done or attempted with a view to gain, and that the gain shall be shared by the parties to the agreement, is the essential characteristic of every partnership, and is the leading feature in every definition of the term.” In Pleasants v. Fant, 22 Wall. 120, it is held that one of the approved criteria of the existence of a partnership is the right to compel an account of the profits in equity. In Parsons on Partnership, page fifty-eight, it is said:
In the case at bar it very clearly appears that the parties, Chouteau and Mrs. Wakefield, purchased their respective interests in the leasehold for the sole purpose and intention of carrying on the business of a theatre.. The deeds they received, and the agreements entered into unquestionably indicate this. After the business was entered into it was carried on in the name of “ DeBar’» Grand Opera House;” a special account in bank was opened in that name, and debts contracted in that name. The deed and agreement entered into between DeBar and Mrs. Wakefield leave no doubt of the intention of. those parties and show their community of interest; and the deed to Chouteau clearly comprehends just such conditions as had been imposed on Mrs. Wakefield, and leaves,, to my mind, the situation equally clear as to DeBar and Chouteau. The acts of the parties in writing, and otherwise, the transaction of all the business, and the circumstances surrounding the whole case, lead to the inevitable conclusion that they were partners, made so by operation of law, upon their own acts.
II. The next question is, was the leasehold partnership property ? It is now considered as settled law that when real estate is partnership property, it is bound for all the debts of the concern, and for all advances made by any of the partners, as though it were personal property. The accounts must be settled between the partners and all partnership debts must be paid, before any creditor of an individual member of the firm, or his heir or representative can take. In Duryea v. Burt, 28 Cal. 569 it is said : “ If two or more persons acquire a mining claim for the purpose of working the same, * * *
In Rossum v. Sinker, Supreme Court of Indiana, reported in 12 Central Law Journal, 202, it is said: “The rule unquestionably is-, that the heirs of a deceased partner have no interest in the real estate owned by the firm until all the partnership debts have been paid. Until all debts have been paid, the surviving partner has the real, substantive interest. * * * Certain it is, however, that the land of a partnership is, in many very essential respects, radically ahd materially different from land owned by an individual. It is also certain that the surviving partner has the substantive interest in such property, and, unquestionably, the right to own, hold and sell it for the purpose of settling up firm affairs and paying firm debts.” See authorities cited in that case. See, also, Burnside v. Merrick, 4 Metc. 537; Dyer v.
III. It seems to be the recognized doctrine that an innocent purchaser or mortgagee, from an individual partner, of réal estate belonging to the partnership, would be protected unless he had notice of the equitable rights of the firm in the premises. In Matlock v. James, 13 N. J. Eq. 126, it is said: “ One partner cannot convey to a creditor of his own, so as to give him a prefer-* ence over the creditors of the firm, his undivided interest in the real estate belonging to the firm, although the title to such property stands in the individtoal names of the partners, such grantee having notice of the equitable rights of the firm in the premises. ’ ’ The question of notice was the turning point, also, in Forde v. Herron, 4 Munf. 316, and the doctrine recognized in McDermot v. Laurence, 7 S. & R. 438. In Frink v. Branch, 16 Conn. 260, it was held that if the property mortgaged was partnership property and the mortgagee had actual or constructive notice of that fact, the solvent partners would have a lien upon it for the payment of debts due by the partnership.
The fact of notice would seem to be conclusive. The circuit court, to which the questions of fact were submitted, so found, with all the evidence before it, and that finding would not be overturned, unless the evidence would most clearly lead to a different conclusion. But
IY. It is insisted by the appellant that the circuit court erred in admitting the testimony of Chouteau, as in violation of that section of the statute which provides that when one of the original parties to the contract is dead, etc., the other party shall not be permitted to testify. This question has been repeatedly passed upon by this court, but we consider it immaterial in the decision of the case at bar. There may be' some question as to the competency of some of the statements of the witness, Chouteau ; on this, however, we do not pass. But much of his testimony was clearly admissible. In the absence of other proof, the fact that the deed from DeBar and wife was on record and was offered in evidence and read without objection, would show prima facie that it had been executed and delivered. The reference in this deed, to-wit: “This conveyance, however, being subject to the terms and conditions of a certain contract made between
V. We do not consider that there is anything in the question of estoppel. The tendency of the evidence is, we think, very clear that the deed of trust by DeBar on his undivided half of the leasehold was made of his own motion, to secure his individual indebtedness, and not in pursuance of the authority given him to pledge the credit of “ DeBar’s Grand Opera House” for the purpose of carrying on the business. The evidence tends to show that “DeBar was to use the income of the concern and pledge its credit to carry it on again, because DeBar was embarrassed, “he was to .pledge the credit of DeBar’s Opera House. That he could go on and contract bills in the name of the opera house. Previously, under his written agreement, he could not have done so.” Now it is very evident that it was not under this license—under this permission to pledge the credit of the opera house— that DeBar executed the deed of trust to secure Jno. G„ Priest. That was evidently an individual transaction. On the other hand, it was doubtless under the authority
The judgment of the court of appeals is affirmed.