Allison v. Dilsaver

• Decision Date: 03 February 1965
• Docket Number: No. 8283,8283
• Citation: 387 S.W.2d 206
• Parties: W. R. ALLISON, Plaintiff-Appellant, v. Ivan E. DILSAVER, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 206

387 S.W.2d 206

W. R. ALLISON, Plaintiff-Appellant, v. Ivan E. DILSAVER, Defendant-Respondent.

No. 8283.

Springfield Court of Appeals, Missouri.

Feb. 3, 1965.

Arkley W. Frieze, Frieze & Crandall, Carthage, for plaintiff-appellant.

J. Carrol Combs, Combs & Combs, Lamar, for defendant-respondent.

HOGAN, Judge.

This is an appeal by the plaintiff from a judgment and decree in favor of the defendant, Ivan Dilsaver, in an action, primarily for an accounting and for contribution, involving an alleged partnership or joint venture of the parties in buying, feeding and selling livestock during the years 1952, 1953 and 1954. A referee has heard evidence adduced in support and in refutation of the charges and credits claimed by the respective parties, and his conclusions resolve ultimately into a finding upon accounting for the defendant and against the plaintiff in the sum of $1,202.50.

The partnership, joint venture, or business undertaking involved here is now defunct, at a considerable net loss. The plaintiff brought this action originally as an action at law, seeking a money judgment against the defendant as co-maker of a promissory note upon which plaintiff had paid a balance remaining due when the venture was finally wound up. The pleadings were later amended and numerous issues were raised by the amended pleadings; voluminous proof, including many exhibits, was presented. The trial of the case, if we count the filing of various motions and other formal matters, extended over a period of nearly eight years. As the case eventually developed, however, three principal issues were litigated and remain in controversy here: First, whether there was in fact a partnership or joint venture between the two parties, as those relationships are commonly understood; second, whether the defendant, as co-maker of several promissory notes executed to obtain money for the business, can be compelled to contribute toward the loss sustained and paid by the plaintiff; and finally, whether the plaintiff was properly charged with certain advances made by the defendant which have not been and cannot be repaid with common funds. With these points of controversy in mind, the facts may be generally stated.

Sometime in 1952, apparently during November, the plaintiff and defendant entered into an oral agreement to buy, feed and sell livestock. At the time, the plaintiff was engaged 'in the funeral business' in Greenfield, Missouri, and the defendant lived with his wife and family on a nearby farm. The agreement between the two parties was oral and quite informal, and is one of the basic subjects of controversy between the parties. As the plaintiff recalled the agreement, 'he [Mr. Dilsaver] come into my office down here at the funeral home and wanted to buy some cattle * * * and we agreed fifty-fifty. * * * We agreed to borrow the money and buy these cattle. He would look after them and we would feed them and divide the profits, go 50-50 on them.' Whether there were profits or losses, 'it was a 50-50 deal.' According to the defendant, the agreement was much more restricted; his position is that the plaintiff agreed to furnish all the money and he agreed to furnish his labor. The defendant testified that Mr. Allison had come to the Dilsaver home and had, without encouragement on the part of defendant, broached the subject of feeding and raising cattle as a joint undertaking. When Mr. Dilsaver advised the plaintiff that he had no money to invest, and Mrs. Dilsaver protested that 'we just wasn't financially able to swing a project of this size,' Mr. Allison agreed that 'he [plaintiff] would furnish the money, and I'd [defendant] put up the work, furnish the labor.' The parties had agreed, Mr. Dilsaver said, that 'the profits [would] be split between us if there [were] any profits,' but the defendant never agreed to pay any losses incurred in the undertaking. At one point, Mr. Dilsaver was asked if anything was said about his paying any money that might be owed at the end of the venture, and he answered: 'No. He said all I could lose was the labor I would put into it.' The parties seem agreed that no writing was ever executed or signed and that their undertaking was for an indefinite period.

The parties did enter business dealing in livestock, particularly in cattle. That part of the association or venture which is material here began in the fall of 1952, and records produced by the appellant indicate that during the years 1952, 1953 and 1954 the parties acquired and sold cattle in substantial numbers. Their livestock was kept and fed at a number of places; some of the cattle, and apparently most of the calves produced, were kept and fed at the defendant's farm. Part of the herd was maintained at two other locations near Greenfield, and part was kept as far away as Fairland, Oklahoma, some 100 miles distant.

The parties borrowed extensively to finance and maintain their operation. The plaintiff relied heavily upon the banking transactions of the two parties as evidence of the existence of a partnership, and he introduced a number of promissory notes, liability ledgers and other banking records. Upon the basis of these memoranda, as amplified and explained by oral evidence, the plaintiff maintained that the parties had in fact borrowed funds as general partners and had become jointly obligated on the notes which they made. The promissory notes introduced in evidence indicate that during the course of their operation, particularly in late 1952 and in 1953, the parties executed a number of promissory notes at the First National Bank of Golden City, Missouri, for sums ranging from $300.00 to $15,844.06, and others at another bank for sums totaling $7,330.68. Some of the notes were signed by both parties, some by the plaintiff alone, and some were simply signed 'Allison and Dilsaver' by the plaintiff. The money which the parties borrowed was repaid from the proceeds of the business, except for the balance which the plaintiff paid. These promissory notes, in themselves, shed little light on the existence of a partnership or joint venture, save as they are explained and qualified by oral evidence, and the proof does not clearly distinguish those notes executed to obtain capital for investment and those executed simply to obtain money for operating expenses. A good many of the promissory notes bear unexplained notations, and some of them are marked simply 'corn' or 'feed' or 'feed for cattle.' Others bear no marking. There is one note, however, which was executed by both the plaintiff and defendant on October 29, 1953, to the First National Bank of Golden City, Missouri, for $15,844.06; it represented a consolidation and renewal of two other loans and was secured by a chattel mortgage on cattle and hogs. It is clear to us that it was on this note that a balance of $10,432.71 remained due when the venture was finally liquidated in 1954. This balance was paid by the plaintiff and, as we have indicated, the original and principal purpose of this action was to secure contribution of one-half of this sum from the defendant.

The parties' functions in the day-to-day operation of this venture or undertaking are not very fully developed. The plaintiff appears to have kept such records of the business as were kept, and although the parties maintained joint bank accounts at each of the banks with which they dealt, the plaintiff wrote all the checks and had control of these two accounts. Mr. Dilsaver testified that Mr. Allison 'bought most of the feed' and that it was paid for 'through the partnership account, this charge account.' It is inferable from the record that when the cattle were moved from one location to another the plaintiff decided where they were to be moved, although the defendant testified that 'once or twice' he went with the plaintiff to rent pasture. Mr. Allison's testimony, on the other hand, was that the management of the herd and the purchase of feed and renting of pasture was a matter which was attended to by 'both of us, me part of it and both of us part of it.'

The business records kept by Mr. Allison indicate that cattle were bought at a number of different places, from various individuals or concerns in southwest Missouri. The record is silent as to whether these purchases were made by the parties together or individually, and reflects no consultation between the parties concerning the grade or type of stock which was to be purchased. There is some indication that on one occasion Mr. Allison engaged in a separate and individual purchase and sale of feed, the proceeds of which he credited to one of the joint accounts; there is uncontradicted proof that some of the defendant's personal farming expenses were paid by Mr. Allison from the joint account, upon the defendant's agreement to repay the sums expended. Mr. Dilsaver proved without substantial contradiction that he contributed a considerable amount of feed, minerals and insecticide from stores or supplies which he had on hand or purchased individually, and the record indicates that some of the venture's feed was used by Mr. Dilsaver for individual purposes, that is, to feed to his own livestock.

When the defendant was asked who 'made the decisions as to the sale of the cattle,' he answered that it 'was more or less talked out between us, but it was really up to him [plaintiff], the final decision. It was his money.' However, on several occasions the defendant loaded and transported the cattle to market. Ordinarily, the proceeds of any sale of livestock were remitted directly to the plaintiff, but on one occasion, when hogs were sold, the defendant received his check directly. Mr. Dilsaver remitted this amount directly to one of the banks for credit on one of the notes secured by a chattel mortgage on livestock.

It does not seem to be seriously disputed that the defendant and his wife made a substantial contribution of labor in feeding and caring for the...