Clifton v. Howard

• Decision Date: 07 June 1886
• Parties: Clifton, Plaintiff in Error, v. Howard
• Court: Missouri Supreme Court

1 S.W. 26

89 Mo. 192

Clifton, Plaintiff in Error, v. Howard

Supreme Court of Missouri

June 7, 1886

Error to Morgan Circuit Court. -- Hon. E. L. Edwards, Judge.

Reversed.

A. W Anthony and Cosgrove, Johnston & Pigott for plaintiff in error.

(1) A partnership cannot be implied, as a matter of law, from a business relation, if the parties thereto have not made or intended to make a partnership contract, and if they have done nothing to estop them from denying the existence of a partnership. Beecher v. Bush, 45 Mich. 188; Roth v. Kirchoff, 12 Mo.App. 599. (2) Participation in the profits and losses of a firm does not necessarily vest in the participator such an interest in the firm property as will subject it to seizure under execution for his individual debts. State ex rel. Overstreet v. Finn, 11 Mo.App 546; Donnell v. Harshe, 67 Mo. 170; Musser v Brink, 68 Mo. 242; S. C., 80 Mo. 350; Gillham v. Kerone, 45 Mo. 487; Rapp v. Vogel, 45 Mo. 524; McCauley's Adm'r v. Cleveland, 21 Mo. 438; Bartlett v. Jones, 2 Strobhart (S. C.) 471; 49 Am. Decisions, 606; Dwinel v. Stone, 30 Me. 384; Boston & Colorado Smelting Co. v. Smith, 13 R. I. 27; 43 Am. Rep. 3; Eastman v. Clark, 53 N.H. 276; 16 Am. Rep. 192; Burnett v. Snyder, 81 N.Y. 550; 37 Am. Rep. 527; Richardson v. Hughitt, 76 N.Y. 55; 32 Am. Rep. 267; Ashby v. Shaw, 82 Mo. 76; Alfaro v. De La Torre, 3 Cent. L. J. 473; Story on Part. (7 Ed.) sec. 27, bottom pages 37, 38, 39. (3) Under the authorities above cited it is clear that the instructions asked on the part of the plaintiff and refused by the court below should have been given.

R. F. Walker and Draffen & Williams for defendant in error.

(1) The eighth instruction asked by plaintiff was properly refused. It is not true, as a matter of law, that, in order to make one a partner in a business, he must, in every case, "have the right to make contracts, incur liabilities, manage the whole business and dispose of the whole property." It is not uncommon for the partnership agreement to restrict the management to one partner and this is binding upon the partners and those having notice. It has never been held that such an arrangement destroyed the partnership. Priest v. Chouteau, 12 Mo.App. 252; Cargill v. Owen, 15 Mo. 425; Dreyer v. Sander, 48 Mo. 400. (2) The plaintiff, having asked the trial court to instruct the jury upon the theory that he and Estis were partners, and directing them to ascertain the value of the latter's interest in the cattle, is not in a good position to allege in this court that there was no sufficient proof of partnership. Leabo v. Goode, 67 Mo. 126; Loomis v. Railroad, 17 Mo.App. 340. (3) The instructions given upon the part of the defendant state the law correctly. Plaintiff and Estis were partners if they bought the cattle jointly and for the purpose of selling them and dividing the profits or losses of the venture between them. Lucas v. Cole, 57 Mo. 143; Gilham v. Kerone, 45 Mo. 487; Lingle v. Smith, 48 Mo. 276; Myers v. Fields, 37 Mo. 434. (4) The first, second, fourth, seventh and tenth instructions asked by plaintiff were properly refused. Plaintiff and Estis owned the cattle. The fact that they were indebted for them did not change the ownership. The sheriff was under no obligation to investigate the condition of the firm before levying his writ. Wiles v. Maddex, 26 Mo. 77; Gilham v. Kerone, 45 Mo. 487. After having held themselves out as partners, and thereby caused the sheriff, upon the faith of their acts to levy the writ they are estopped from denying the partnership to the extent of making him a trespasser. (6) There was no evidence upon which to base the sixth instruction.

OPINION

Henry, C. J.

This is an action of replevin to recover of defendant thirty-two head of fat cattle taken by him as the property of James K. Estis on an execution against Estis in favor of B. S. Walker. The defence was that plaintiff in this case and Estis had fraudulently conspired to cheat and defraud the creditors of Estis, who was in fact the owner of the property, and that Clifton's claim was made in furtherance of said fraudulent scheme.

The evidence tended to prove that plaintiff, Clifton, and Estis, both residents of Morgan county, had for years been purchasing and shipping cattle to St. Louis, each on his account and to different commission houses, Clifton to Irons & Cassidy, and Estis to Geo. R. Taylor & Company. That neither was using his own capital. That they severally had an agreement with their respective commission merchants, by which he was to purchase cattle for his commission merchant, and, when the cattle were delivered in the stock yards at Versailles and billed for shipment in the cars, he could draw a sight draft on his commission merchant for the amount paid for the cattle, he having previously paid for them by his individual checks on banks at Versailles. That when the cattle in controversy were levied upon in the stock yards at Versailles they had been billed by Clifton to Irons & Cassidy, and Clifton had drawn a sight draft on them in favor of a bank at Versailles for the amount necessary to cover his checks on said bank to pay for the cattle. That said cattle were purchased by Clifton and paid for by his individual check on said bank, and that Estis had no interest in said cattle, except under the following arrangement made by and between him and Clifton, about two years before this bunch of cattle was purchased, viz: In order to avoid conflict and rivalry between them in the cattle trade in that neighborhood, it was agreed that in all lots of cattle bought in the same neighborhood, and shipped by either, the other should have half of the profits if any arising from the shipment and should pay half the losses of such shipment and sale, if any, and, in pursuance of said arrangement they often assisted each other in loading stock on the cars, and accompanied each other in purchasing, and when a portion of the cattle in controversy were purchased, Estis was present, and was also present when the cattle were seized by Howard, the sheriff. That when either went out of his own neighborhood and bought cattle, it was on his own account, and the other did not share in the profits of such purchases. That between the time these cattle were levied upon, and the date at which they were replevied and shipped, cattle declined in St. Louis forty or fifty cents on the one hundred pounds. The demand of Walker against Estis was the individual debt of Estis, with which plaintiff had no connection whatever, and was contracted long before Clifton and Estis had any business connection with each other.

On the part of plaintiff, the court declared the law as follows:

"5. To maintain plaintiff's action, it is not necessary that he should have been the owner of the property seized by the sheriff; it is sufficient if he had them in his possession and under his care and control at the time, with some interest in the cattle, general or special."

"9. If the jury believe from the evidence, that J. K. Estis, was a partner of the plaintiff in the cattle in controversy, at the time they were levied upon by defendant, as the term partner is defined in another instruction, you are instructed that the defendant by such levy only acquired such interest in said cattle as the said Estis had in them at the time; and it is your duty to ascertain what such interest, if any, was worth, and this you must do from all the evidence in the case."

The court among others refused the following asked by plaintiff:

"2. If the jury should believe from the evidence that Estis had an interest in the cattle, but that such interest was simply a part of the profits that might accrue upon a sale of them then he had no such interest in the cattle as would authorize their seizure or an execution against him."

"8. The court instructs the jury, that a mere participation in profit and loss does not...