| Ark. | May 24, 1920
Lead Opinion
(after stating the facts). Counsel for the plaintiff first insists that a partnership existed between the plaintiff and defendant with regard to the lands. There is nothing in the testimony to establish this fact. It was a mere conclusion on plaintiff’s part suggested by the question asked him. The testimony of the parties to this suit shows conclusively that no partnership existed between them. According to Pumphrey’s own testimony Furlow was to buy the land and was to let him have a part of it at the price he paid for it. There was no agreement to hold the land and sell it and share the profits and losses arising from the ■ transaction. There was no community of interest whatever between them. In order to constitute a partnership, it is necessary that there should be something more than a joint ownership of the property. There was no agreement to buy the lands for the purpose of resale, sharing equally in the expenses and profits as was the case in Beebe v. Olentine, 97 Ark. 390" date_filed="1911-01-30" court="Ark." case_name="Beebe v. Olentine">97 Ark. 390. Hence they were not partners in fact nor in law.
Again it was contended by counsel for the plaintiff that under the facts a resale trust arose in favor of the plaintiff. We can not agree with counsel in this contention. In Red Bud Realty Co. v. South, 96 Ark. 281" date_filed="1910-07-11" court="Ark." case_name="Red Bud Realty Co. v. South">96 Ark. 281, it was held that a resulting trust did not arise where a trustee purchased property solely upon his own credit and subsequently paid for it with trust funds. In order to constitute a resulting trust, the purchase money must be paid by another, or secured by another at the same time, or previously to the purchase and must be a part of that transaction. ' The trust must arise by virtue of the purchase and as none was created at that time, none can arise afterward. In order to create a resulting trust in favor of one who pays the purchase money for property bought in the name of another the payment must be contemporary with the trust and not afterward. Hence according to Pumphrey’s own testimony the purchase money was paid by him sometime after the contract of purchase was made. Hence no resulting trust arose in his favor.
Finally it is insisted that Pumphrey and Furlow en-' tered into an oral agreement whereby the latter was to buy the tract of land and let the former have a part of it at the price originally paid for it; and that this contract was executed by Furlow purchasing the land and at a later date entering into a written contract with Pumphrey to sell him a part of it at $25 per acre, when in truth and in fact Furlow had bought it for $15 per acre. Even if it be held that this entitled Pumphrey to an abatement of the purchase price, it can not be said that the decree of the chancellor should be reversed; nor can it be said that the finding of the chancellor in favor of the defendant is against the preponderance of the evidence. The testimony of the parties to this suit is in direct and irreconcilable conflict. Pumphrey stated in positive terms that it was understood between him and Furlow that Furlow should buy the land and let him have a part of it at the original purchase price. On the other hand, Furlow is equally positive that no such agreement was made between him and Pumphrey. He stated that Pumphrey agreed to give him as much as $25 an acre for a part of the land in order to induce him to go and make a trade for the land. He admits that, he bought the land for $15 an acre, but denies in most positive terms that he agreed to let Pumphrey have a part of it at that price. According to his testimony, it wa's understood in advance that Pumphrey was, to pay him $25 an acre for the land and that Pumphrey .actually agreed to pay that price at the time their written contract was executed.
It is insisted by counsel for the plaintiff that the plaintiff’s testimony is strongly corroborated by the witness A. Hall. We do not think so. In the first place, Hall admitted that he did not like Furlow, and when his whole testimony is examined in the record, it slibws that he simply answered yes to direct questions propounded to him. On cross-examination he showed that he did not know much about the matter, or at least did not understand it. He admitted that the transaction had slipped his memory.
Again, it is insisted that the testimony of the plaintiff is corroborated by the cashier of the bank, because he admitted that Furlow had told him that he did not want Pumplirey to know wbat be bad paid for the land. This does not tend to corroborate tbe plaintiff’s testimony. ' It, may be that Furlow did not want Pumpbrey to know wbat be gave for tbe land for fear that Pumpbrey would not carry out bis agreement to ■ purchase a part of it for $25 an acre. It will be remembered that their agreement in tbe beginning was a verbal one. Then too, according to Pumphrey, when be paid for bis part of tbe land, tbe cashier of the bank and Furlow acted as if they were drawing up a mortgage in favor of tbe bank for Furlow’s part of tbe purchase money. Both tbe cashier of tbe bank and Furlow denied that anything of this kind occurred.
Again it is contended that the fact that Furlow withheld bis contract from tbe record tended to corroborate tbe testimony of Pumpbrey. We do not think so. There is nothing to indicate that it was withheld for that purpose. On tbe other band, as soon as Pumpbrey asked for tbe contract, it was delivered to him.
Tbe evidence of Furlow is corroborated to a certain extent by that of Davis, who bought some timber from Pumphrey on tbe part of tbe land allotted to him. Davis said that at tbe time be bought the timber Pumpbrey told him that be did not know wbat Furlow bad paid for tbe land. This tends to corroborate the testimony of Furlow.
It follows that tbe decree will be affirmed.
Dissenting Opinion
dissents, bolding with appellant on tbe last proposition, towit: that appellant and appellee entered into an oral agreement whereby appellee was to buy tbe tract of land, and let appellant have a portion of it at tbe same price that appellee paid for it per acre. The finding of the trial court on this issue is clearly against the preponderance of tbe evidence.