Steckman v. Galt State Bank

126 Mo. App. 664 | Mo. Ct. App. | 1907

ELLISON, J.

This is an action of replevin for several head of horses, in which the plaintiff prevailed in the trial court.

It appears that plaintiff and one McDonald were interested in some horses. These interests came about in the following way: Plaintiff resided in Trenton and owned a farm eight or ten miles out. McDonald lived on the farm under such form of agreement as gave him an interest in some of the stock. McDonald gave a chattel mortgage to defendant on a portion of the stock under which it took possession. The question which concerns the present disposition of the case is the nature of McDonald’s interest in the horses taken under the writ in this case. That interest was evidenced by the following contract signed by plaintiff and McDonald: “This agreement by and between E. H. Steckman and F. C. McDonald, Witnesseth: That on September 5, 1905, E. H. Steckman bought of W. B. Carpenter sixteen western horses and three colts and entered into- the following agreement with F. C. McDonald whereby McDonald was to take and did take horses and was to feed, care and dispose of same and turn over to Steckman the proceeds until purchase price of five hundred dollars had been paid, then the two to share and share alike in the profits or losses of the venture.” This we regard as a partnership agreement. There is nothing in the case to overcome the presumption that it was a partnership between the parties. The face of the paper does all but say, in terms, that it was a partnership. It provides that McDonald was to take care of the horses and dispose of them and of the proceeds of such disposition he was, from time to time, as he made disposition, to turn over to plaintiff “until” the purchase price was returned; and then the remainder was to be divided equally, if there was any remainder, and if there was not, the losses were to be so divided. It seems to us that under authority of the following cases the horses were partnership property: Lengle v. Smith, 48 Mo. 276; Torbert v. Jeffrey, 161 Mo. 645; Rankin v. Fairley, 29 Mo. App. 587. It is true that when not in the face of the written contract of partnership itself, parties may show intention as to a partnership; and in this case plaintiff has stated that M'cDonald had no interest in the horses. But he stated on cross-examination that their purpose was to buy them jointly until he found that McDonald did not have his part of the purchase money, when they made the contract copied above. Manifestly the contract is one of partnership as they at first intended, except that his advance of the purchase price was to be secured to him in the way stated. In keeping with this was the fact that McDonald did make sale and disposal of some of the horses included in the contract but not in this controversy.

Being property in which another had a joint interest plaintiff cannot maintain an action of replevin. He must have the right to the immediate exclusive possession, else he cannot invoke such remedy. [Upham v. Gordon, 73 Mo. App. 224, 76 Mo. App. 206; Spooner v. Ross, 24 Mo. App. 599.]

Plaintiff contends-that this objection was not made at the trial and therefore the trial court had not the opportunity of passing upon it; and in consequence it ought now to be disallowed to defendant. But it appears that defendant asked a demurrer to the evidence, and that was sufficient to authorize an insistence on the point on appeal. The fact that after the demurrer was overruled defendant asked other instructions on other theories, does not waive whatever point may be properly raised under the demurrer. [Kenefick v. Ins. Co., 103 S. W. 957; 205 Mo. 294.]

It is unnecessary to notice many other points of controversy between the parties. The judgment will be reversed.

All concur,