Wetmore v. Crouch
Decision Date | 14 June 1899 |
Citation | 51 S.W. 738,150 Mo. 671 |
Parties | Wetmore, Appellant, v. Crouch |
Court | Missouri Supreme Court |
Appeal from St. Louis County Circuit Court. -- Hon. Rudolph Hirzel Judge.
Reversed and remanded.
W. M Kinsey and J. J. McCann for appellant.
(1) The court erred in sustaining respondent's demurrer to the evidence. The transaction was a joint venture in which, by express agreement, the loss if any was to be shared equally between the parties, and, by implication of law, the profits if any, were to be shared in like manner. Brigham v. Dana, 29 Vt. 1; Richards v. Grinnell, 63 Ia. 44; Whitcomb v. Converse, 119 Mass. 44. (2) Where parties engage in a joint venture, or become co-owners, but not partners within the legal definition of that term, their rights and liabilities as to profits and losses are settled upon the general principles governing the law of partnership as to those matters, in the absence of express stipulation. Lindley on Partnership (2 Am. Ed.), pp. 51 to 53; Parsons on Partnership (4 Ed.), p. 53. (3) The rule as to joint ownership of either real or personal property sustains, by strong analogy, appellant's contention in this case. "The shares of joint tenants and tenant in common are presumed to be equal." Freeman on Co-tenancy and Par. (2d Ed.), sec. 105; Compton v. Compton, 44 Mich. 31; Shiels v. Stark, 14 Ga. 437; Nippel v. Hammond, 4 Col. 218; 1 Schouler on Personal Property, 187. (4) The acceptance by appellant of the $ 430 on May 9th, 1889, when the $ 6,500 of stock was exchanged for the Redmond Cleary property, was not a settlement, because it was neither tendered nor accepted as such. Brigham v. Dana, 29 Vt. 1. And if it had been, the acceptance was not binding, both for want of consideration and because respondent failed to disclose to appellant the fact that he had received $ 3,700 in cash as part of the profits of the venture in addition to the $ 6,500 in stock.
Jno. H. Drabelle for respondent.
(1) An express agreement that the plaintiff and defendant were to share equally the profits and losses of the alleged venture is averred. It is admitted that there is no proof of such express agreement. Hence, the court was right in sustaining the demurrer to the evidence. (2) Where an express contract is declared on, evidence of an implied contract can not be received. 4 Encly. of Pleading, p. 927; Yeates v. Ballentine, 56 Mo. 530; Eyerman v. Cemetery Ass'n, 61 Mo. 489; Davis v. Brown, 67 Mo. 313; Lewis v. Slack, 27 Mo.App. 119; Traders Bank v. Payne, 31 Mo.App. 512: Hence, the court was right in sustaining the demurrer to the evidence. (3) If plaintiff proved a contract different from the one declared on, he can not recover. 2 Encly. of Pleading, p. 998. (4) There can be no implied contract when an express contract exists: So the law never raises a promise when the evidence shows the parties intended none. Also, the law will not imply a promise of any person against his own declaration, because such declaration is repugnant to any implication of promise. Savings Bank v. Aull, 80 Mo. 199; Morris v. Barnes, 35 Mo. 412; Guenther v. Birchit, 22 Mo. 439; Hart v. Hart, 41 Mo. 441; Sints v. Taylor, 20 Mo.App. 166. (5) The evidence in this case, even if it can be held to sustain the allegations of the petition in regard to the contract, negatives any contract, either express or implied, by the defendant to pay plaintiff any definite part of the profits of the venture, and hence there can be no recovery. Wetmore v. Crouch, 55 Mo.App. 441. (6) The plaintiff received and accepted from defendant $ 500 worth of the stock representing her profits of the alleged venture, knowing at that time that the profits realized were as much as $ 6,500; accepted the $ 250 and delivered up to defendant the alleged receipt therefor. This was done in the absence of any fraud or misrepresentation, or claim of such, the record disclosing that the plaintiff was a woman of more than ordinary capacity and shrewdness. This constituted not only a settlement of the transaction, but also an interpretation by the parties themselves of the alleged agreement. "Actions speak louder than words." 11 Am. and Eng. Ency. of Law, p. 518; Price's Heirs v. Evans, 26 Mo. 49; Gas Light Co. v. St. Louis, 46 Mo. 121.
This is an action begun April 17, 1894, to recover the value of the plaintiff's share of the profits which she claims accrued in a venture entered into jointly by herself and defendant.
The petition states substantially, that in 1888, at the proposal of defendant, plaintiff advanced him $ 250 to purchase upon their joint account a half interest in an option on certain real estate near the city of St. Louis, with the understanding and agreement that the profits and losses of the venture should be shared equally between them; that the purchase was made by defendant and afterward sold by him to a real estate corporation called the Kenwood Investment Company, whereby the defendant received in cash $ 3,700 and 260 shares of stock in the Kenwood Investment Company worth $ 25 a share; that defendant represented to plaintiff that the 260 shares of stock was all that he had realized, fraudulently concealing that he had received $ 3,700; the defendant procured this stock to be issued in three certificates, one for 40 shares amounting to $ 1,000 face value in his own name, one for 200 shares, face value $ 5,000 in plaintiff's name, and one for 20 shares, face value $ 500, also in plaintiff's name, which two last named certificates plaintiff, at the request of defendant, transferred to defendant's wife for the purpose of enabling defendant to handle them in the market for the joint benefit of plaintiff and defendant; that defendant sold all of this stock May 9, 1889, and received in payment $ 2,100 in cash and a house and lot in St. Louis at a valuation of $ 4,000, the title to which he took in his wife's name, thus with the $ 3,700 above mentioned defendant realized in all $ 9,800, of which $ 4,900 justly belongs to plaintiff, on which the defendant has paid her $ 650 and refuses to pay her more; judgment for $ 4,250 and interest is prayed.
The answer was a general denial and the statute of limitations. The reply was that this suit was brought within one year after a nonsuit in the same cause of action suffered by plaintiff.
Plaintiff in her own behalf testified substantially that she was a teacher in the public schools of St. Louis and the defendant was the husband of her sister; in the spring of 1888, she loaned defendant $ 250 and took his note for the amount shortly afterward he came to her prepared to pay the note, and was willing to do so, but proposed to her that instead of taking the money back she allow him to invest it for their joint interest in an option on what was known as the Benton farm; there was some discussion about the risk, in which he said there was not much risk and he thought they would make a good deal of money out of it. Then she agreed to let him use the money in that venture and he gave her a receipt in these words: "Received of Miss Octavia Wetmore $ 250 to be used on the Benton farm option," and she gave him back the note she had held. After the note was returned to him and the receipt had been given, he said "We are liable to make a good deal of money out of this and I would like to limit you;" and just before he left he said, "If we don't succeed I will refund half of this $ 250." That was all that was said on the subject of sharing the profits and losses. The next meeting between plaintiff and defendant was in August, 1888, when he came to her and informed her that he and Mr. Greenwood, who owned the other half, had sold the option at a net profit of $ 13,000 to be paid in stock of the Kenwood Investment Company. Plaintiff told him that he had done well, to which he replied that he would rather have had money. Proceeding, the witness said: ...
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