Allan v. Hargadine-McKittrick Dry Goods Company

• Decision Date: 28 June 1926
• Docket Number: 21408
• Parties: George H. Allan, Appellant, v. Hargadine-McKittrick Dry Goods Company
• Court: Missouri Supreme Court

286 S.W. 16

315 Mo. 254

George H. Allan, Appellant, v. Hargadine-McKittrick Dry Goods Company

No. 21408

Supreme Court of Missouri

June 28, 1926

Appeal from Circuit Court of City of St. Louis; Hon. Thomas Bond Judge.

Reversed and remanded.

Anderson Gilbert & Wolfort and Abbott, Fauntleroy, Cullen & Edwards for appellant.

(1) The evidence tended to prove a joint adventure and the court erred in not submitting that issue to the jury. Wetmore v. Crouch, 150 Mo. 680; Dierks Lumber Co. v Bruce, 239 S.W. 132; Lind v. Webster, Ann. Case 1916 (Mo.) 1202; Hoge v. George, 200 P. 99; Flower v. Barnekoff, 20 Ore. 132, 11 L. R. A. 149; Kayser v. Maugham, 8 Colo. 232; Smith v. Imhoff, 89 Wash. 418; Butler v. Union Trust Co., 172 P. 601; Jones v. Patrick, 140 F. 409; Irvine v. Campbell, Ann. Cas. 1914-C (Minn.) 689. (2) Where the existence of the relationship is in issue, and there is substantial evidence tending to prove that the parties intended to join their efforts in furtherance of the enterprise for their joint profit, the question is, of course, one for the jury. Hoylon v. Appleton Mach. Co., 192 N.W. 168; Pyron v. Brownfield, 238 S.W. 724; Van Tine v. Hilands, 131 F. 124; Hoge v. George, 200 P. 99 (Wyo.) ; 33 C. J. 845, 861. (3) In the absence of an express agreement between the parties to a joint adventure as to the proportions in which they are to share in the profits thereof, the law presumes that they intended that each should share equally with the others, notwithstanding an inequality in the amounts contributed by them to the capital employed in the venture or in the amount of services performed by them respectively. Wetmore v. Crouch, 150 Mo. 671; Knapp v. Hanley, 108 Mo.App. 353; Douglass v. Merceles, 23 N.J.Eq. 331; Anderson v. Blair, 206 Ala. 418; Van Tine v. Hilands, 131 F. 124; Goss v. Lanin, 170 Iowa 57; Warner v. Wood, 200 F. 542; Lind v. Webber, 36 Nev. 623, 50 L. R. A. (N. S.) 1046, Ann. Cas. 1916A, 1202; Gamble v. Loffler, 28 S.D. 239; Hoge v. George, 27 Wyo. 423; Senneff v. Healy, 155 Iowa 82, 39 L. R. A. (N. S.) 219. (4) When a transaction under a joint adventure has been closed and the profits are ascertainable by a simple computation, the law implies a promise by the member having possession of the fund to pay to his associates the share thereof to which each is entitled, and this promise is enforceable at law in an action of assumpsit. Seehorn v. Hall, 130 Mo. 257; Reid v. Shaffer, 249 F. 553; Wann v. Kelley, 5 F. 584; Hurley v. Walton, 63 Ill. 260; Thomas v. Stenhouse, 210 Ill.App. 372; Daniel v. Daniel, 166 Ky. 182; Sporie v. Fitts, 119 Me. 362; Felbel v. Kahn, 29 A.D. 270, 51 N.Y.S. 435; Jones v. McNally, 53 Misc. 59, 103 N.Y.S. 1011; Ledford v. Emerson, 140 N.C. 288, 4 L. R. A. (N. S.) 130, 6 Ann. Cas. 107; Finlay v. Stewart, 56 Pa. 183; Wright v. Crumpsty, 41 Pa. 102; Gillis v. McKinney, 6 Watts & S. 78; Cleveland v. Farrar, 4 Brewst. 27; Peterson v. Nichols, 90 Wash. 398; Annon v. Brown, 65 W.Va. 34. (5) Where an express contract has been fully performed on plaintiff's part, and nothing remains to be done under it but the payment of money by defendant, which is nothing more than the law would imply against him, plaintiff may declare generally in indebitatus assumpsit. Moore v. H. Gaus Mfg. Co., 113 Mo. 98; Williams v. Railroad Co., 112 Mo. 463, 34 Am. St. 403; Mansur v. Botts, 80 Mo. 651; Stout v. St. Louis Tribune Co., 52 Mo. 342; Ingram v. Ashmore, 12 Mo. 574; Kennerly v. Somerville, 68 Mo.App. 222; American Surety Co. v. Constr. Co., 182 Mo.App. 667; Wilson v. Wilson, 106 Mo.App. 501; 5 C. J. sec. 17, p. 1386.

Nagel & Kirby and Charles P. Williams for respondent.

(1) There was no joint adventure shown by the evidence. The analogies of parternership require a principalship -- a community of ownership -- in the profits as such. A proportion of the profits, by way of compensation for extra work, is not enough. Denny v. Cabot, 6 Metc. 82; Ross v. Burrage, 233 Mass. 439; Hill v. Curtis, 139 N.Y.S. 428; Baum v. Stephenson, 133 Mo.App. 187; Wiggins v. Graham, 51 Mo. 20; Campbell v. Dent, 54 Mo. 325; Ashby v. Shaw, 82 Mo. 76; Hughes v. Ewing, 162 Mo. 261; Daniel v. Stone, 30 Me. 384; Ball v. Schuberth, 2 Md. 38; Burton v. Goodspeed, 69 Ill. 237; Hely v. Hinerman, 303 Mo. 147; Skinner v. Whitlow, 184 Mo.App. 229; Sain v. Rooney, 125 Mo.App. 187; Bank of Odessa v. Jennings, 18 Mo.App. 651; Beckwith v. Talbot, 2 Colo. 639; Shepard v. Pratt, 16 Kan. 209; Berthold v. Goldsmith, 24 How. (U.S.) 536; Macy v. Combs, 15 Ind. 469; Emmons v. Finck, 21 Hun, 210; Stone v. Turfmen's Association, 103 Ky. 318; Cline v. Caldwell, 4 La. 137; Prouty v. Swift, 51 N.Y. 594; Kellogg v. Griswold, 12 Vt. 291; Martin v. Riehl, 58 N.Y.S. 141; Burns v. Niagara Co., 130 N.Y.S. 54. (2) The "good share of the profits" that Mr. McKittrick promised plaintiff Mr. McKittrick was to get the company to give to plaintiff. It nowhere appears that plaintiff was to be liable as a principal or to be held for losses. National Bank v. Francis, 296 Mo. 169, 192. The burden to show the relationship claimed rests strongly on plaintiff. Chapin v. Cherry, 243 Mo. 408. (3) Plaintiff having pleaded solely an express contract of joint adventure cannot recover on a quantum meruit for services rendered. Arnold v. Angell, 62 N.Y. 508; Smith v. Dunn, 44 Misc. 288.

Railey, C. Higbee, C., concurs.

OPINION

RAILEY

On January 20, 1916, the plaintiff, George H. Allan, filed his petition in the Circuit Court of the City of St. Louis, Missouri, against the Hargadine-McKittrick Dry Goods Company, a corporation. Omitting caption and signature, said petition reads as follows:

"Plaintiff states that defendant is, and was at all times herein mentioned, a corporation duly organized.

"Plaintiff further states that on or about the 1st day of October, 1914, George W. Simmons desired to have manufactured for him knapsacks and bags, and agreed with defendant that if defendant would undertake to organize a factory force and manufacture said knapsacks and bags in its factory he (the said George W. Simmons) would furnish all machines and factory equipment necessary for the manufacture of said bags and knapsacks which was not then in said factory, and would furnish all materials entering into the manufacture of said knapsacks and bags, and would furnish all money necessary to finance the operation of said factory; provided, however, said dry goods company would agree to run said factory night and day as far as possible, to manufacture and deliver said knapsacks and bags.

"That defendant then and there agreed with plaintiff that if he would become a joint adventurer with defendant in the work of manufacturing said articles and carrying out its said contract with said Simmons, and if the plaintiff would undertake to form a factory force and organization for the purpose of manufacturing said knapsacks and bags and would superintend and direct said organization and would work night and day, as far as possible, in the manufacture of said knapsacks and bags, in event he could make a profit from the manufacture of said bags and knapsacks plaintiff should be entitled to and would receive a good part or share of any profits accruing from the execution and fulfillment of said contract, but plaintiff should receive nothing if no profits were made.

"The defendant and plaintiff were the only persons interested in said adventure, and it was understood and agreed that the profits and losses, if any, of the venture should be shared equally between them.

"That then and there plaintiff agreed to work with defendant and form a factory force and organization and superintend and direct the same in the manufacture of said bags and knapsacks upon the terms and conditions above set out.

"That thereupon said dry goods company entered into a contract with said George W. Simmons for the manufacture of said knapsacks and bags upon the terms and conditions above set out.

"That thereafter plaintiff did work with defendant and form a factory force and organization and did enter into the manufacture of said knapsacks and bags and did continue superintending and directing said force in the manufacture of the same until on or about October 5, 1915, and worked night and day as far as was possible in the manufacture of said knapsacks and bags; that all bags and knapsacks were manufactured and delivered by October 5, 1915.

"That said George W. Simmons complied with said agreement, put up with defendant sufficient money to finance said factory during the entire time said bags and knapsacks were being manufactured, and paid to defendant all sums due defendant; that from the manufacture of said knapsacks and bags a profit, which is now in the possession of defendant, of over $ 60,000 was made.

"That plaintiff is entitled to $ 30,000, the same being one-half of the said profits, and that said sum is due and owing from the defendant to plaintiff; that defendant refuses to pay said sum and every part thereof, to plaintiff's damage in the sum of $ 30,000.

"Wherefore, plaintiff prays judgment against defendant for $ 30,000, with six per cent interest and for his costs."

The defendant, in its answer to second amended petition, admits that it is a corporation, and denies every other allegation contained in said petition.

The case was reached for trial on June 10, 1918, before Judge Thomas Bond and a jury, the evidence of plaintiff was completed on the following day, and at the conclusion of same a demurrer to plaintiff's evidence was sustained and appellant took an involuntary nonsuit with leave, etc. On June 12, 1918, plaintiff filed his motion to set aside said nonsuit, which was overruled on July 1, 1918. Thereafter during the same time, on application of plaintiff, an appeal was duly allowed him to ...