35 Mo. App. 30 | Mo. Ct. App. | 1889
delivered the opinion of the court.
The plaintiff brought this action to recover a balance of $24.85, claimed to be due by account for services rendered in threshing grain for the defendant. The defendant denied that he employed the plaintiff to thresh his grain, but admitted that he did employ one H. P. Clift to do said threshing, understanding and believing him to be the partner of Roper in the threshing business and that the defendant paid Clift. There was no controversy as to the fact that the amount for which the plaintiff sued had been earned by the plaintiff, or by Clift, or by both the plaintiff and Clift as partners, in threshing the defendant’s grain. But the defendant
The plaintiff’s evidence tended to show that there was no partnership between him and Clift, but that Clift was employed by the plaintiff under an arrangement that he, Clift, was to receive a certain per diem, or a part of the profits of the business, at plaintiff’s option. The plaintiff denied hearing the defendant say to Clift in his presence that the defendant intended to deduct what Clift was owing him from the amount which he was owing for the threshing.
The defendant took a receipt from Clift of the following tenor:
“ September 1, 1886.
“Received of Frank Schaeffer on threshing account, $35.20, full amount due on his account. By John Roper (the plaintiff) $10.35; by H. P. Clift $24.85.
“ Roper & Cltet.”
There was also evidence tending to show that Clift had collected of other parties moneys due for threshing,
“The court declares the law to be that simple participation in the profits and losses of a business does not constitute a partnership, but there must be such a community of interest as enables each party to make contracts, manage the business and dispose of the whole property; and this rule is the same as to third persons,
That such was the defendant’s theory of the case will also appear from the following declaration of law requested by the defendant and refused by the court: “ If the court, sitting as a jury, finds from the evidence that John W. Roper and H. P. Clift were associated together in the year 1886 in the business of threshing wheat; that they participated in the profits of said business; that each collected money due for threshing wheat, giving receipts therefor in the name of Roper and Clift; that both, or either, hired laborers to work in said business, and that sometimes Clift and sometimes Roper paid said laborers; that there has never been any settlement by and between Clift and Roper of the affairs of said threshing business — then the court will find the issues for the defendant, although the court may further find that the amount of $24.85 was the individual debt of said Clift to defendant.”
Error is assigned upon the giving of the former and refusing of the latter of these instructions. The former of these instructions was drawn in conformity with the views of this court as expressed in the case of Newberger v. Friede, 23 Mo. App., at page 637. It should be observed that the statement of this court was that “ a mere participation in the profits and losses of the business does not necessarily create a partnership.” But in the opinion given on the rehearing (Ib. p. 640) the language used by this court is as broad as that stated in the instruction. The rule thus laid down was based on the decision of the supreme court in Donnell v. Harshe, 67 Mo. 170 (re-affirmed and applied in Musser v. Brink, 68 Mo. 242), which we understood as overruling Lengle v. Smith, 48 Mo. 276, and as being the last controlling decisions of the supreme court on the subject.
As the question may become material on another trial, we will add that we see no error in refusing the defendant’s instruction above set out. It was an argumentative instruction, requesting the court to find
It is enough to say concerning the assignment of error that the judgment is not in accordance with the
For the giving of the instruction above set out the judgment must be reversed and the cause remanded. It is so ordered.