Shipp v. Snyder

Decision Date24 March 1894
PartiesShipp, Plaintiff in Error, v. Snyder et al
CourtMissouri Supreme Court

Appeal from Chariton Circuit Court. -- Hon. G. D. Burgess, Judge.

Reversed and remanded.

Kinley & Kinley for plaintiff in error.

(1) Defendant McLeod, in his separate answer, averred that he was a partner with Shipp during his lifetime in the business of buying and selling the lands in question, and as it was both proved and admitted in the pleadings that Shipp was dead McLeod was not a competent witness in the case for any purpose. Chapman v. Dougherty, 87 Mo. 617. (2) The lands in question were not partnership assets. To constitute real estate the assets of a partnership, it must have been bought with partnership funds, for partnership purposes, and used as part of the stock in trade of the partnership. These lands had none of the foregoing attributes or characteristics, and hence plaintiff was entitled to dower in the land. Willet v. Brown, 65 Mo. 138; 10 Leigh (Va.) 406; Duhring v. Duhring, 20 Mo. 174; Carlile's Adm'r v. Mulhen, 19 Mo. 56; Murphy v. Craig, 42 N.W. 1097. (3) Though plaintiff's husband during his lifetime, and defendant McLeod, did agree with each other to be interested in the profits and losses of an adventure, this alone will not constitute them partners in the property, either real or personal, which is the subject of the venture. Collyer on Partnership, secs. 170-172; Story on Partnership, sec. 27; Smith v. Watson, 2 B. & C. 401; Heran v Hall, 1 B. Mon. 159; Bartlett v. Jones, 2 Strobhart, 471; Whitcomb v. Converse, 119 Mass. 43; Kingsbury v. Thorp, 28 N.W. 74; Thompson v. Holden, 22 S.W. 905. (4) Though real property is held in the joint name of several owners, it is no evidence of copartnership between them with respect to it. In the absence of proof of its purchase with partnership funds for partnership purposes, real estate standing in the names of several persons is deemed to be held by them as tenants in common, and none of the several owners possess authority to sell or bind the interest of his copartners. Thompson v. Holden, 22 S.W. 905; Thompson v. Bowman, 6 Wall. (U.S.) 316-318. (5) Nor does a verbal agreement to buy real estate jointly, constitute a partnership. Pulford v. Morton, 28 N.W. 716; Keyser v. Maughann, 8 Col. 232. (6) Between the parties themselves there is no such a thing as a partnership by implication or operation of law. The relation between the parties is founded on voluntary contract and can not exist independent of it. Wilson's Ex'r v. Cobb, 28 N.J.Eq. 177; Chase v. Barrett, 4 Paige, 160; Bank v. Altheimer, 91 Mo. 191; Allen v. Logan, 96 Mo. 591; Fitzgerald v. Barker, 85 Mo. 13. Declarations of a party do not prove a partnership inter sese. Reimel v. Hayes, 83 Mo. 200. (7) Though plaintiff joined in relinquishing her dower in the deed of trust to J. M. Marsh, for the eighty acres sold to her former husband and McLeod, and though McLeod paid the mortgage, and it was satisfied, there was no subrogation, nor did this estop plaintiff from asserting her dower therein. Jones v. Bragg, 33 Mo. 337; Atkinson v. Augert, 46 Mo. 515; Duke v. Brandt, 51 Mo. 221; McCreary v. Lewis, 114 Mo. 582.

A. W. Mullins and Tyson S. Dines for defendants in error.

(1) The lands in question were bought for partnership purposes, used as partnership property, held as partnership stock in trade and sold as partnership property. They thus possessed every attribute of partnership lands. Dale v. Hamilton, 5 Hare, 369; Sumner v. Thompson, 8 Ohio 328; Johns v. Johns, 1 Ohio St. 357; Wormser v. Meyer, 54 How. Pr. 189; Hunter v. Whitehead, 42 Mo. 524; Springer v. Cabbell, 10 Mo. 640. (2) McLeod and Shipp formed a valid partnership for the purpose of speculating in swamp lands. The parties so regarded it. They intended to form such a partnership. They acted as partners, managed the lands as partners, raised the crops together, one acting for all, dividing profits and sharing losses. They were partners in the land. Morse v. Richmond, 97 Ill. 303; Dale v. Hamilton, 5 Hare, 369; Bunnell v. Taintor, 4 Conn. 568; Essex v. Essex, 20 Beav. 442; Chester v. Dickerson, 54 N.Y. 1; Traphagen v. Burt, 67 N.Y. 30; Richards v. Grinnell, 63 Iowa 44; Pennybacker v. Leary, 65 Iowa 220; Holmes v. McCray, 51 Ind. 358. (3) An agreement to buy an interest in a business with a view to carry it on together, sharing profits, is an agreement of partnership. Goddard v. Pratt, 16 Pick. 412; Pinkerton v. Ross, 33 Up. Can. Q. B. 508; Botham v. Keefer, 2 Ont. App. 595; Plummer v. Lord, 7 Allen, 481; Tyler v. Scott, 45 Vt. 261; Voorhees v. Jones, 29 N. J. L. 270. (4) "Misdirection is no ground for a new trial where jury has not been misled; nor where the verdict is right; nor where substantial justice has been done; nor where a new trial would lead to the same results; nor because the judge gave wrong reasons for a correct decision; nor where erroneous instructions were not injurious to the party complaining; nor where they were given at his request." 2 Am. and Eng. Encyclopedia of Law, p. 266, sec. 9, and cases cited; Davis v. Brown, 67 Mo. 313; Flowers v. Helm, 29 Mo. 324; Hook v. Craghead, 35 Mo. 380.

OPINION

Brace, J.

This was an action brought by the plaintiff Martha E. Shipp in the circuit court of Chariton county for assignment of dower in certain lands in said county of which her late husband, Benjamin H. Shipp, deceased, was, in his lifetime and during his marriage, seized in fee simple as tenant in common with one W. O. McLeod, who, in like manner, was seized of the other undivided half. The defense was that the said Shipp and McLeod were partners, acquired said lands with partnership funds, and for partnership purposes, and held them as partnership assets from the time they were first acquired until they were sold by the said Shipp & McLeod to the defendant Snyder. The case was tried by the court without a jury.

Exceptions were saved to the ruling of the court on the admission of evidence, in two instances, but we find no reversible error in such rulings.

At the close of all the evidence the court made the following finding of facts and gave the following declarations of law on behalf of the plaintiff:

"The court, trying said cause as a jury, finds there is no evidence in this case showing said lands or any part thereof to have been purchased by said Ben H. Shipp and W. O. McLeod as a partnership engaged in business, or that said lands or any part thereof were paid for by said partnership funds, nor that said lands were purchased to enter into any partnership assets, nor that said lands were regarded by said B. H. Shipp and W. O. McLeod as part of any partnership assets, and for said reasons plaintiff is entitled to recover dower therein.

"The court, sitting in said case as a jury, declares the law to be that before the plaintiff can be barred of her right to recover her dower in and to said lands, or any part thereof by reason of any claim that said lands or any parts thereof are partnership assets, you must find and believe from the preponderance of the evidence: First. That Benjamin H. Shipp and W. O. McLeod at the time of the acquisition of said lands by them, were engaged in business as copartners. Second. That the lands in controversy were purchased for said partnership and paid for out of funds belonging to said partnership, to be used and applied to partnership purposes. Third. That said lands were considered by said Shipp and McLeod as partnership property. And, unless the court finds each of the above propositions to be true, it must find for plaintiff. And the court further declares that the mere fact that said Shipp and McLeod agreed with each other to purchase said lands and did so purchase the same, each paying his part of the purchase money, with the agreement with each other to share the profits and losses of the purchase equally, did not constitute said lands partnership assets, nor make them partners therein, nor bar nor affect the plaintiff's right to dower therein.

"Though ...

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