Steckman v. Gault State Bank

• Citation: 126 Mo. App. 664,105 S.W. 674
• Parties: STECKMAN v. GAULT STATE BANK et al.
• Decision Date: 04 November 1907
• Court: Court of Appeal of Missouri (US)

105 S.W. 674

126 Mo. A. 664

STECKMAN v. GAULT STATE BANK et al.

Kansas City Court of Appeals. Missouri.

November 4, 1907.

Rehearing Denied December 2, 1907.

1. PARTNERSHIP—THE RELATION — COMMUNITY OF INTEREST IN PROFITS AND LOSSES.

Plaintiff entered into an agreement with M., who occupied his farm under an agreement which gave him an interest in some of the stock, whereby M. was to feed, care for, and dispose of certain horses purchased by plaintiff, and turn over to plaintiff the proceeds until the purchase price had been paid, and then both were to share alike in the profits or losses of the venture. Held, that there was a partnership between plaintiff and M. for the purpose of disposing of the horses, and they were partnership property.

2. REPLEVIN—RIGHT OF ACTION—TITLE AND RIGHT TO POSSESSION OF PLAINTIFF.

Where plaintiff has only a joint interest with M. in certain horses, they being partnership property, he cannot maintain replevin to recover possession of them, since the action can be maintained only by one having the right to the immediate exclusive possession of the property.

3. APPEAL—PRESENTATION OF OBJECTION IN LOWER COURT—RIGHT TO SUE.

In replevin, the fact that defendant asked a demurrer to the evidence authorizes him to urge on appeal that plaintiff could not maintain the action, since it appeared that the property sought to be recovered was owned jointly by plaintiff and another.

4. TRIAL—WAIVER OF OBJECTIONS — RULING ON DEMURRER TO EVIDENCE.

The fact that, after a demurrer to the evidence in an action of replevin was overruled, defendant asked instructions on other theories, does not waive whatever point may be properly raised under the demurrer.

Appeal from Circuit Court, Grundy County; Geo. W. Wanamaker, Judge.

Replevin by E. H. Steckman against the Gault State Bank and others. From a judgment for plaintiff, defendants appeal. Reversed.

Hall & Hall, for appellants. Platt & George Hubbell, for respondent.

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 Sept. 5th, 1905, E. H. Steckman bought of W. B. Carpenter sixteen...