Sain v. Rooney

• Decision Date: 01 April 1907
• Citation: 101 S.W. 1127,125 Mo.App. 176
• Parties: CHARLES G. SAIN, Respondent, v. P. T. ROONEY, Appellant
• Court: Kansas Court of Appeals

101 S.W. 1127

125 Mo.App. 176

CHARLES G. SAIN, Respondent, v. P. T. ROONEY, Appellant

Court of Appeals of Missouri, Kansas City

April 1, 1907

Appeal from DeKalb Circuit Court.--Hon. Alonzo D. Burnes, Judge.

AFFIRMED.

Judgment affirmed.

J. J McAnaw for appellant.

(1) A finding of court must show upon which count of petition it is based, and must dispose of every count. Wells v Adams, 88 Mo.App. 215; Grimes v. Sprague, 86 Mo.App. 245; Welsh v. Stewart, 31 Mo.App. 376; Griggs v. Deal, 30 Mo.App. 152; Adams v Railroad, 58 Mo. 386; St. Charles v. Duel, 45 Mo. 269; Pitts v. Fugate, 41 Mo. 405; Clarks v. Railroad, 36 Mo. 202. And must dispose of every party to the record. Spalding v. Citizens Bank, 78 Mo.App. 374. (2) When a partnership is alleged in either petition or answer and the names of partners given, such allegation stands admitted unless traversed by affidavit filed with pleading. R. S. 1899, sec. 746; Richards v. McNemee, 87 Mo.App. 396; Wear Bros. v. Schmelzer, 92 Mo.App. 315; Meyer Bros. v. Insurance Co., 73 Mo.App. 166; Walker v. Point Pleasant, 49 Mo.App. 247; White v. I. O. O. F., 30 Mo.App. 682; Com. Co. v. Hunter, 91 Mo.App. 122; Haysler v. Dawson, 28 Mo.App. 531. (3) A stranger to the partnership is not held to the same strictness of proof as a partner would be. Bissel v. Ward, 129 Mo. 439; Campbell v. Hood, 6 Mo. 211; 22 Am. and Eng. Ency. Law (2 Ed.), 38; Martin v. Maxwell, 18 Mo.App. 176; Hilz v. Railroad, 101 Mo. 36. (4) There can be a partnership in even a single transaction. Hunter v. Whitehead, 42 Mo. 524; Jones v. Davis, 60 Kan. 309; Spencer v. Jones, 92 Tex. 518; Yeoman v. Lasley, 40 Ohio St. 190; Hulet v. Fairbank, 40 Ohio St. 233; Plunket v. Dillon, 4 Houst. 388; Ensign v. Wands, 1 Jon. Cas. 171; Livingstone v. Roosevelt, 4 John. 270; Post v. Kimberley, 9 John. 470; Mumford v. Nicol, 20 John. 611; Reynolds v. Cleveland, 4 Cow. 282; Competon v. McNair, 1 Wend. 457; Bentley v. White, 3 B. Mon. 263; Mifflin v. Smith, 17 S. & R. 165; Petrefin v. Collier, 1 Pa. St. 247; Benson v. McBee, 2 McNull 91; Solomen v. Solomen, 2 Kelly 18; Ripley v. Colby, 23 N.H. 438; Fowler v. Barnekoff, 11 L. R. A. 149; Story on Partnership, p. 18, sec. 15, ch. 3; Shoemaker on Partnership, p. 146; 1 Bates on Partnership, p. 11, sec. 13; 1 Lindley on Partnership, p. 55, sec. 4; 1 Colyer, ch. 11, sec. 28, p. 46; 6 Words and Phrases, p. 5200; Tit. Partnership; 22 Am. and Eng. Ency. Law, p. 72; Leeds v. Townsend, 89 Ill.App. 646; Winsterly v. Gleyre, 146 Ill. 27; Boone v. Clark, 129 Ill. 488; Roby v. Colheur, 135 Ill. 300; Morrill v. Colheur, 82 Ill. 625; Carter v. Carter, 28 Ill.App. 340; Hurley v. Watson, 63 Ill. 260; Goldschalk v. Smith, 54 Ill.App. 344; Fawcett v. Osborn, 32 Ill. 411; Adams v. Funk, 53 Ill. 219; Snell v. Deland, 43 Ill. 323; Galbreath v. Moore, 2 Wats. 86; Dart v. Walker, 3 Daly 136; Mason v. Seidlitz, 22 Colo. 320; Kingsbury v. Fleck, 61 Mich. 216.

Hewitt & Hewitt for respondent.

(1) There was but one contract testified to by either appellant or respondent, and that contract was, that Sain was to have for his commission, all the farm was sold for above nine thousand dollars. (2) Authorities cited under appellant's point one are not in point for the reason that these were cases wherein two or more causes of action were included in different counts, and not where one cause of action was stated in different counts. (3) Appellant's authorities cited under two are not in point. The statute relied upon by appellant is too plain to be misunderstood. (4) We are clearly of the opinion, and we think this court will agree with us that the appellant has misconceived his case, for the reason that the rules promulgated by the various authorities cited, do not apply under the pleadings and facts in this case.

OPINION

JOHNSON, J.

Action by a real estate agent against his principal to recover commissions earned in the sale of a farm. A trial before a jury resulted in a verdict for defendant, but this was set aside on motion for new trial. The parties then stipulated to waive a jury and to submit the cause to the trial judge "upon the record and evidence heretofore made in said cause." On the hearing anew, the court entered judgment in favor of plaintiff in the sum of six hundred ninety-six and twenty-five one-hundredths dollars, and defendant appealed.

In the early part of June, 1903, L. S. Hurd, a real estate agent in Cameron, received a letter from J. W. Monroe, a similar agent doing business in Grinnell, Iowa, in which the writer stated he had a customer who desired to purchase a farm of specified size and description located in the vicinity of Cameron. Hurd, knowing of no such farm that was for sale, exhibited the letter to plaintiff and the ensuing conversation is thus stated by plaintiff:

"He (meaning Hurd) invited me over to his office. . . . I went to his office with him. He showed me this letter and says, 'If you think you can suit him, you had better write to him I have got nothing to fill the bill, I don't believe.' I sat down and wrote the letter. Q. What, if anything was said at that time about a partnership or a division of the fees? A. There never was anything said about a partnership. Q. Well, about the fees? A. Not at any time or place. Q. Was anything said about dividing the fee in case you sold the farm? A. No, sir."

Plaintiff then went to defendant, Rooney, who owned a farm in the vicinity of Cameron and entered into a contract with him by the terms of which plaintiff was employed as the agent of Rooney to sell the farm, and for his services, was to receive the excess, if any, of the selling price over the sum of nine thousand dollars. Plaintiff then returned to Hurd's office, and with his permission, answered Monroe's letter in Hurd's name. Further correspondence followed, with the result that Monroe appeared in Cameron with his customer, a Mr. Roth, and sought out Mr. Hurd who in turn introduced them to plaintiff. The latter procured a conveyance, took Monroe and Roth therein to the farm, and a sale was agreed on at the price of $ 10,392.50. A deed was executed and delivered to the purchaser in due time, a partial payment was made on the purchase price, but the final payment was not made until some months later. Defendant, Rooney, acknowledged his liability to pay the sum of $ 1,392.50 as commissions, but agreed with plaintiff and Monroe that payment thereof should not be made until the purchaser had fully paid the purchase price of the farm.

Previously, it had been agreed between plaintiff and Monroe that each should receive one-half of the commission. Rooney, not knowing that Hurd had any connection with the transaction, at the request of plaintiff, executed and deposited with the First National Bank of Cameron, on the day the sale was made, the following written obligation to pay the commissions: "To whom it may concern: I hereby acknowledge myself indebted to J. W. Monroe of Grinnell, Iowa, and Charles G. Sain of Cameron, Missouri, in the sum of six hundred, ninety-six and twenty-five one-hundredths dollars each to be paid to said J. W. Monroe and C. G. Sain when W. C. Roth of Tama, Iowa, pays for the farm I have this day sold to said W. C. Roth and said farm is located in Daviess county, Missouri. And in the event of the failure of the said W. C. Roth to take and pay for said farm, this agreement to become null and void. Collection of the above is to be made and remitted by the First National Bank of Cameron, Missouri."

The purchase price of the farm was fully paid in the following February. Shortly thereafter, the sum of $ 696.25 was paid by Rooney to the bank and remitted to Monroe in payment of his half of the commission. In the meantime, Hurd advanced the claim that he and plaintiff were equal partners in the transaction, and employed counsel to assist him in procuring half of the commission belonging to Sain under the instrument above copied. His attorney succeeded in inducing Rooney to pay the whole sum of $ 696.25 to him on the representation that, as the attorney employed by one of the partners, he had the right to demand and receive the whole amount due the partnership, and on the execution and delivery to Rooney of a bond to indemnify him against loss in thus disposing of the money. All of this was done without the consent of plaintiff, who had at all times denied that Hurd had any interest in the commission.

When the suit was brought, Rooney and Monroe were joined as parties defendant. It was alleged in the petition "that the defendant, P. T. Rooney, was at the time of making the agreement and promises hereinafter referred to, the owner of a farm in Daviess county, Missouri, which he was desirous of selling; said Rooney, on the twenty-second day of June, 1903, being so desirous, promised and agreed to pay said Charles G. Sain and J. W. Monroe ($ 1,392.50) thirteen hundred ninety-two and fifty one-hundredths dollars, provided one W. C. Roth of Tama, Iowa, whom said Sain and Monroe had induced to contract with said Rooney to purchase said farm, should finally consummate said purchase and pay for said farm. Plaintiff says that said Roth did on or about the first day of March, 1904, consummate the said contract or agreement by purchasing said farm and paying said Rooney therefor, and thereupon said Rooney became indebted to said plaintiff and defendant, Monroe, in the sum of thirteen hundred ninety-two and fifty one-hundredths dollars, or six hundred ninety-six and twenty-five one-hundredths dollars to each of them. Plaintiff says that defendant Monroe is hostile towards this plaintiff and refuses to be joined as plaintiff herein, therefore he is joined as defendant, he being a necessary party to said cause of action.

"Wherefore by reason of the promises aforesaid, defen...