105 S.W. 674 (Mo.App. 1907), Steckman v. Galt State Bank
|Citation:||105 S.W. 674, 126 Mo.App. 664|
|Opinion Judge:||ELLISON, J.|
|Party Name:||E. H. STECKMAN, Respondent, v. GALT STATE BANK et al., Appellants|
|Attorney:||Platt Hubbell and George Hubbell for appellants. Hall & Hall for respondent.|
|Case Date:||November 04, 1907|
|Court:||Court of Appeals of Missouri|
Appeal from Grundy Circuit court.--Hon. George W. Wannemaker, Judge.
(1) Plaintiff Steckman and his man, McDonald, are joint owners by their own agreement. Myers v. Field, 37 Mo. 439. (2) Since Lengle v. Smith, 48 Mo. 276, is sound law, this case must be reversed, without remanding. The plaintiff has mistaken his remedy. The Supreme Court of Missouri does not regard Lengle v. Smith, supra, as having been overruled. (3) The defendants here are sticking right to their trial court theory, that these demurrers should have been sustained. Kenefick v. Ins. Society, 103 S.W. 961.
(1) Plaintiff and McDonald were not joint owners or partners in the horses as contended by appellants. The testimony clearly shows that it was not the intention of plaintiff or McDonald that McDonald should own or have any interests in the property itself, but that the contrary, thereof is true. The sharing of profits and losses, does not create a partnership. Newberger v. Friede, 23 Mo.App. 637; Roper v. Schaefer, 35 Mo.App. 36; Lockhart v. Forsythe, 49 Mo.App. 659; Wetmore v. Crouch, 55 Mo.App. 444; Beatty v. Clarkson, 110 Mo.App. 5; Donnell v. Harshe, 67 Mo. 170; Musser v. Brink, 68 Mo. 249, 80 Mo. 350; Ashby v. Shaw, 82 Mo. 80; McDonald v. Matney, 82 Mo. 365; Newspaper Company v. Farrell, 88 Mo. 597; Clifton v. Howard, 89 Mo. 199; Mackie v. Mott, 146 Mo. 254; Sain v. Rooney (Mo. App.) 101 S.W. 1127, 1131; 22 Am. and Eng. Ency. of Law, 24, 31. The case of Lengle v. Smith, 48 Mo. 276, cited by appellant has been overruled; Newberger v. Friede, 23 Mo.App. 637; Wetmore v. Crouch, 55 Mo.App. 444. (2) The question of partnership between plaintiff and McDonald in the property sued for is an afterthought raised by appellant for the first time in his brief and argument in this cause, and as the question was not presented and passed on by the trial court the same will not be considered by this court. Elevator Co. v. Cleary, 77 Mo.App. 301; Huff v. Thurman, 78 Mo.App. 635; Kansas City v. McGovern, 78 Mo.App. 513; Huling v. Stone Co., 87 Mo. 355; Slater v. Lodge, 88 Mo.App. 182; School Dist. v. Matherly, 90...
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