Willoughby v. Hildreth

Decision Date16 June 1914
PartiesT. J. WILLOUGHBY, J. T. PRIGMORE and J. W. McWILLIAMS, Respondents, v. FRANK HILDRETH et al., Appellants
CourtMissouri Court of Appeals

Appeal from Jasper County Circuit Court. Division Number One.--Hon Joseph D. Perkins, Judge.

REVERSED.

Judgment reversed.

H. L Shannon for appellants.

(1) A partnership is a contract of two or more competent persons to place their money, effects, labor, and skill, or some or all of them, in lawful commerce or business, and to divide the profit and bear the loss in certain proportions. Cyc. Vol 30, page 349; Freeman v. Bloomfield, 43 Mo. 391; Rinel v. Hayes, 83 Mo. 201; Maclay v. Freeman, 48 Mo. 234; Kellogg News Paper Co. v. Farrell, 88 Mo. 594; Mining Co. v. Swope, 204 Mo. 48; Thompson v. Holden, 117 Mo. 118; Sain v. Rooney, 125 Mo.App. 176; Gille Hardware & Iron Co. v. McCleverty, 89 Mo.App. 154; Bank of Osceola v. Outhwaite, 50 Mo.App. 124; Herbert v. Callahan & Baker, 35 Mo.App. 498; Kelley v. Gaines, 24 Mo.App. 506; Donnell v. Harshe, 67 Mo. 170; Musser v. Brink, 68 Mo. 242; Ellis v. Brand, 158 S.W. 705. (2) As the defendants did not hold themselves out as partners in the Carthage Cash Store, and the plaintiff was not influenced by any such consideration in making the sale of their goods to said store, it follows that there could be no recovery unless they were partners in fact in said store. Gille Hardware & Iron Co. v. McCleverty, 89 Mo.App. l. c. 159; Bank v. Osceola v. Outhwaite, 50 Mo.App. 124; Herbert v. Callahan & Baker, 35 Mo.App. 498. (3) Where a party assumes without authority to act as an agent, he warrants his authority as agent, and is liable for a breach of warranty. Cyc., Vol. 31, page 1545. A party cannot sue on one cause of action and recover on an entirely different cause of action. Beck v. Ferrara, 19 Mo. 30; Clark v. Clark, 59 Mo.App. 532; Wesby et al. v. Bowers, 58 Mo.App. 419; Cape Girardeau v. Kimmel, 58 Mo. 83; Reed v. Bott, 100 Mo. 62; Price v. Railroad, 72 Mo. 414; Harris v. Railroad, 37 Mo. 307; Clements v. Yates, 69 Mo. 623; Raming v. Metropolitan St. R. Co., 157 Mo. 507.

H. L. Bright for respondents.

(1) The defendants were members in good standing in the Farmers' Cooperative League at the time the Carthage Cash store became indebted to plaintiffs. They helped to start the Carthage Cash store. The store did a Commercial business and sold goods at a profit. Reports were made by its managers to defendants. When the store failed, defendants sold it and paid some of its debts. Defendants acknowledged in writing that they owned the store and owed the account of plaintiffs. The Farmers Cooperative League in its operation of the store was a partnership and each member of the League is liable as a partner. 25 American and Eng. Ency. of Law, pp. 1131, 1133, 1136, 1139; Davidson v. Holden, 55 Conn. 103, 3 Am. St. Rep. 40; Kuhl v. Myer, 35 Mo.App. 206; Hammerstein v. Parsons, 38 Mo.App. 332; O'Rourke v. Kelly, 156 Mo.App. 91. (2) In an action at law like this tried by the court without a jury where no declarations of law were asked or given and there was simply a general finding for the plaintiff and there is substantial evidence in the record to support the judgment, the judgment will be affirmed, there being nothing for the appellate court to review. Hanekrat v. Broughman, 164 Mo.App. 108; Bowser v. Atkinson, 161 Mo.App. 450; Wischmeyer v. Richardson, 153 Mo. 556; Scarrett Estate Co. v. Casualty Co., 166 Mo.App. 567; Rice v. McClure, 74 Mo.App. 383; Garrison v. Lyle, 38 Mo.App. 558; Rausch v. Michel, 192 Mo. 293; People's National Bank v. Central Trust Co., 179 Mo. 648; Rice v. McClure, 74 Mo.App. 383; Rausch v. Michel, 192 Mo. 293; Gaines v. Fender, 82 Mo. 497; Miller v. Brenke, 83 Mo. 165; Bond & Stock Co. v. Houck, 213 Mo. 416.

FARRINGTON, J. Robertson, P. J., and Sturgis, J., concur.

OPINION

FARRINGTON, J.--

Suit by three partners doing business under a firm name to recover for certain flour, feed and meal alleged to have been sold to sixteen residents of Jasper county on the theory that the defendants were partners in the Carthage Cash Store. Plaintiffs were successful at the trial. Defendants each denied the existence of a partnership among them under oath. Because of dismissals and failure to join in the appeal, but four of the defendants remain in the contest to support the contention that there was no partnership existing among the defendants,--namely, Hildreth, Hill, Hoofnagle and Givler. A jury was waived in the circuit court, and the trial proceeded. No declarations of law were asked or given. Hence, the finding in favor of plaintiffs will not be interfered with if there is any substantial evidence of the existence of a partnership among the defendants. To make the issue plain, the defendants (appellants) contend, in effect, that the evidence was such that, if requested, the trial court would have been obliged to declare as a matter of law that no partnership existed among the defendants.

There is involved the sum of $ 64.60, and, to be sure, a principle. Indeed, this law suit is all that remains of the life and death of a colossal idea--a perfectly legitimate scheme that was put to work in Jasper county in the year 1909, which was designed to organize the farmers of the United States of America as a fraternal order, with all the proper dignitaries, a farm products sales agency and brokerage concern, and a purchasing agency which might operate a grain elevator, a storage warehouse or a cold storage plant. The name of the organization was "The Farmers' Cooperative League." There was no incorporation. There is no evidence as to how the organization was perfected, but the constitution of the order is in evidence, and it appears that one Whittaker was president and one Noble was "organizer" of the national league. The scheme contemplated a lodge of four grand divisions--national, state, county, and local, each having a full quota of officers. There might be many local lodges in a county, each having a president, vice-president, secretary, treasurer, inside watchman, outside watchman, chaplain, and an executive board of three members elected annually; and the representatives of the combined local lodges in a county constituted the county league, having similar elective officers, and an executive board, and a "county business manager." Noble filled the last-mentioned office at the time the Carthage Cash Store was started. Only two local lodges are referred to in the evidence, and if there were others they are not mentioned. There is no way of knowing from the record whether a state league was ever organized, or whether the so-called national league ever set foot out of Jasper county. The constitution provided that it should be the duty of the county league immediately after its organization "to take such steps as may be necessary to establish at the most convenient and available point in the county, a storage warehouse, grain elevator, cold storage plant, or such other buildings as may be, in their judgment necessary for the successful and economical handling of such products of the farm and general merchandise as the circumstances and general surroundings will justify." Accordingly, a warehouse was established in a part of a building occupied by a firm conducting a general store, which was put in charge of the "county business manager" who received orders from the local lodges in the county and bought for cash from this general store in jobbing quantities at wholesale prices the goods ordered. Practically all the witnesses say that Noble was the first county business manager. This warehouse was continued for several months. In February, 1910, however, the Carthage Cash Store opened for business in another building and the warehouse was discontinued.

Now the evidence shows without dispute that money was advanced by certain members of the "Pearl Hill" and "Pleasant Grove" local lodges for the purpose of starting the Carthage Cash Store. There is some evidence that the matter of establishing the warehouse was discussed to some extent at the meeting of the county lodge, but no action seems to have been taken with reference to the establishment of the Carthage Cash Store. The defendants testified that the money was merely loaned by individual members and that they expected to get it back. Noble, who received and invested it, so testified. He also testified that a note was given for part of the money so advanced; that he put no money in the venture; that there was no agreement that any member of the organization should have any certain interest in the stock that he knew of; that the stock was not divided into shares; that he was under the direction of the executive board of the league; that when he was ready to turn the store over to some one else he consulted the executive board; that the board employed Downs; that the store was run for the benefit of the Farmers' Cooperative League; that the board audited his accounts; that his salary as business agent of the league was thirty dollars per month which was paid to him by the county secretary; and that they sold to members cheaper than to others, and also handled their produce to the best advantage.

The testimony of Williams (one of the defendants, originally) is that the note referred to by Noble was made payable to the "Pearl Hill" local, and that most of the members of that lodge put up money. Moss, a member of that local, and a defendant originally, didn't know whether the money was raised at a meeting night or not; he testified that the money he loaned to Noble was loaned when the note was given, that the different amounts were subscribed at different times, and that it was the money of individual members. Hoofnagle, an appellant, another...

To continue reading

Request your trial
1 cases

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT