Brown v. Houchin

• Decision Date: 16 January 1911
• Citation: 133 S.W. 680,154 Mo. App. 261
• Parties: BROWN et al. v. HOUCHIN.
• Court: Missouri Court of Appeals

133 S.W. 680

154 Mo. A. 261

BROWN et al. v. HOUCHIN.

Kansas City Court of Appeals. Missouri.

January 16, 1911.

Rehearing Denied January 30, 1911.

1. PARTNERSHIP (§ 53)—EXISTENCE OF RELATION —EVIDENCE.

Evidence held not to show the existence of a partnership between plaintiffs and defendant.

2. APPEAL AND ERROR (§ 1009)—REVIEW — FINDINGS IN EQUITY CASES.

While in equity cases the appellate courts do not give the findings of the trial court the same effect accorded to verdicts, but reverse judgments not sustained by the weight of evidence, yet in weighing the evidence in such cases they will consider the advantage of the trial judge in observing the parties and witnesses.

Appeal from Circuit Court, Cole County; Samuel Davis, Special Judge.

Action by R. B. Brown and another against James A. Houchin. Judgment for defendant, and plaintiffs appeal. Affirmed.

Hazell, Edwards & Lay, for appellants. W. S. Pope, for respondent.

JOHNSON, J.

This is a suit in equity to wind up the affairs of a partnership which plaintiffs allege was composed of themselves and defendant, and which proved to be a losing venture. Defendant denied the existence of the partnership. After hearing the evidence, the trial court rendered judgment for defendant, and, after unsuccessfully moving for a new trial, plaintiffs brought the case here by appeal.

No written contract of partnership was made by the parties, but plaintiffs contend the relation was established by oral agreement, and was recognized by defendant until it became apparent that the business conducted by the firm would entail a heavy loss, when defendant, whose relation to the business had not been made public, repudiated the contract, and refused to acknowledge his connection as a partner. It is claimed the losses of the business borne by plaintiffs aggregated $4,662.92, and that, since defendant and plaintiffs were to share profits and divide losses equally, defendant is liable to plaintiffs in the sum of $1,554.30, one-third of the total loss.

Material facts disclosed by the evidence are as follows: At the time of the transaction in question the parties lived at Jefferson City. Plaintiff R. B. Brown was a dairyman and farmer, and his coplaintiff, who is his brother, was employed in the insurance department of the state. Defendant was a manufacturer of overalls, and was the proprietor of fair grounds at Jefferson City, where he kept a number of horses. He had been acquainted with one of the plaintiffs a year or more and with the other but a few months. In the spring of 1906, plaintiffs, under the name of Brown Bros., purchased a lot of unbroken horses in Nebraska, and brought them to Jefferson City for resale. After they had been sufficiently broken by plaintiffs, unsuccessful attempts were made to sell them, and, finding that profitable sales could not be effected, plaintiffs endeavored in various ways to work the animals to advantage. Every effort to escape loss proved unavailing, and the horses were kept so long before they could be sold and at such expense that figuratively they "ate their heads off." Plaintiffs had no ready capital, and were compelled to borrow the money invested in the business. First, they borrowed $2,000 of a bank in Jefferson City for which...