Beller v. Murphy

• Decision Date: 06 December 1909
• Citation: 123 S.W. 1029
• Parties: BELLER v. MURPHY et al.
• Court: Missouri Court of Appeals

123 S.W. 1029

BELLER v. MURPHY et al.

Springfield Court of Appeals. Missouri.

December 6, 1909.

Rehearing Denied January 6, 1910.

1. PARTNERSHIP (§ 17) — EXISTENCE OF RELATION — CONTRACTS.

A partnership arises out of contract and is not implied, and, where there is no specific contract of partnership, the court will look to the entire transaction, and from that, construed in the light of the surrounding circumstances, determine the intention of the parties, which will control in determining whether a partnership existed.

2. MINES AND MINERALS (§ 97) — PARTNERSHIP — EXISTENCE OF RELATION — CONTRACTS.

A lease executed by the owner of land to himself and third persons as lessees for mining purposes for a specified period, with a provision of forfeiture, and binding the parties to mine the land continuously during the term, to keep sufficient machinery on the land to do the work, and to pay to the owner a royalty on the ore mined, etc., creates a partnership between the lessees to continue for the specified period.

3. PARTNERSHIP (§ 58) — EXISTENCE OF RELATION — TERMINATION.

Persons engaging as partners to do a certain piece of work agree that the firm shall continue a sufficient length of time to enable them to complete the enterprise.

4. PARTNERSHIP (§ 105) — DISSOLUTION — RIGHT OF PARTNERS.

A partner in a general firm having no fixed limit as to the time of its duration may, in the absence of fraud, terminate it at will without incurring any liability, and a partner in a firm, formed for a specific purpose or for a specified time, may terminate it at will; but, where he does so, without legal cause, he is liable for resulting damages.

5. LIMITATION OF ACTIONS (§ 53) — PARTNERSHIP — ACCOUNTING — ACCRUAL.

Where a partner in a general firm, without any fixed limit as to its duration, terminates it by notice to his copartner, limitations begin thereupon to run against the right of the copartner to an accounting; but where the firm is to run for a specific time, and it is dissolved prior to that time by the wrongful act of one partner, there may be equities between the partners that will require adjustment before limitations begin to run.

6. PARTNERSHIP (§ 259½) — DISSOLUTION — ACTS CONSTITUTING.

The mere exclusion of one partner by the copartner from the firm business does not ipso facto dissolve the firm, but furnishes ground for dissolution in equity on application of the partner excluded, and until such dissolution the excluded partner is entitled on an accounting to his share of the profits.

7. PARTNERSHIP (§ 321) — ACCOUNTING — REMEDIES.

Where a partner in a firm engaged in mining business, on lands leased to the partners by one

of them, is excluded from the firm after the discovery of valuable ore on the land, and the owner in bad faith declared the lease to the partners forfeited to secure to himself an undue advantage over the partners, the excluded partner, on receiving notice of forfeiture, could sue at once for an accounting, or he could wait until the expiration of the period for which the firm was to continue and then sue.

8. LIMITATION OF ACTIONS (§ 53) — PARTNERSHIP — ACCOUNTING.

An action by a partner wrongfully excluded from the firm for an accounting, brought within three years from the expiration of the period for which the partnership should continue, is not barred by limitations.

9. PARTNERSHIP (§ 275) — DISSOLUTION — DEATH OF PARTNER.

The death of one partner dissolves the firm, as a general rule; but does not affect existing contracts between the partners.

10. MINES AND MINERALS (§ 100) — DEATH OF PARTNER — EFFECT AS DISSOLUTION.

The owner of mineral land leased it to a firm, in which plaintiff and the owner himself and his brother were members, to be mined on a royalty; the life of the firm being for a specified term. During the term the owner and his brother wrongfully excluded plaintiff and the other members from the firm, declared the lease forfeited, and made a lease to others at an increased royalty. Before the expiration of the partnership by limitation, the owner died, and his estate was settled. Held, that the second lease was in substance a sublease by the firm, and left the firm nothing to do but to receive and divide the profits, so that the death of the owner did not so effectually dissolve the partnership that plaintiff, at the end of the term, could not compel an accounting for his share of the profits for the entire time.

Appeal from Circuit Court, Jasper County; Hugh Dabbs, Judge.

Action by William Beller against James Murphy and others. From a judgment for plaintiff, defendants appeal. Affirmed.

This is an action for a partnership accounting. Trial was had, judgment for plaintiff, and defendants have appealed.

The facts necessary to a determination of the questions involved in this appeal are as follows: On June 5, 1895, Patrick Murphy, who was the owner of the land, leased to himself, this plaintiff, James Murphy, and others a tract of land in Cherokee county, Kan., for mining purposes for a period of 10 years. The lease required mining operations to begin within 30 days and to be kept up continuously, unless prevented by unavoidable accident, for the term of the lease, and required the lessees to keep machinery on the land sufficient to operate the mines in a workmanlike manner. There were several other provisions, among which was one providing that, should the lessees fail to comply with any of the terms of the lease, the lease should be forfeited. The parties began work on the land, expended considerable sums of money, did considerable drilling and some mining, but did not work continuously. They worked during the summer season, and, by mutual consent, suspended during the winter season. This continued until the spring of 1899. In the early spring of 1899 valuable ore was discovered on land adjoining and very near to this land, with indications that the ore extended under the land covered by this lease. On May 1, 1899, James Murphy having, in the meantime, acquired a one-half interest in the fee of the land with Patrick Murphy, who was his brother, the two Murphys, on that date, attempted to forfeit the lease by notifying this plaintiff, and the other parties, that their interest in the lease was forfeited, and the Murphys then refused to continue the...