Brownlee v. Allen

• Citation: 21 Mo. 123
• Parties: BROWNLEE & OTHERS, Respondents, v. ALLEN, Appellant.
• Decision Date: 31 March 1855
• Court: United States State Supreme Court of Missouri

21 Mo. 123

BROWNLEE & OTHERS, Respondents,

v.ALLEN, Appellant.

Supreme Court of Missouri.

March Term, 1855.

1. A. leased to H. a tract of land upon which was a sulphur spring. A. was to make certain improvements on the land. H. was to reside upon it, provide the buildings with furniture, victualling and attendance, and give his whole time to the superintendence, care and management of the place, with a view to make it a popular resort for recreation and health, and a source of profit to the parties. As rent, A. (or his legal representatives) was to receive one half of the net profits, deducting necessary expenses for furniture, supplies, &c., and any loss was to be equally divided. All furniture or other personal property, purchased or acquired by reason of the agreement, was to be jointly owned by the parties. A. was held liable as a partner to a third person, of whom H. purchased materials for fitting up the buildings.

Appeal from St. Louis Law Commissioner's Court.

This was an action for goods sold and delivered, brought against Hawley & Allen, as partners in the management of the Cheltenham Springs. Hawley did not answer, and a judgment by default was rendered against him. Allen answered, denying any partnership with Hawley, by whom the goods were purchased.

The cause was submitted on an agreed statement of facts, from which it appeared that on the 12th of May, 1852, Allen & Hawley entered into an agreement in writing, by which Allen leased to Hawley, for the term of eight years, the Sulphur Spring tract, near St. Louis, on the following conditions: Allen agreed to make certain specified improvements at a cost of not to exceed $5000. Further improvements might be made out of the earnings of the business of the place, if both parties agreed to it. Hawley agreed to go upon the premises with his wife to reside, and to give his whole time to the superintendence, care and management of the place, and to supply the buildings with proper furniture, victualling and attendance, with a view of making the place a respectable and popular resort for the recreation and health of visitors, and a source of profit to the parties. Hawley agreed to open and keep regular books of account, showing all the items of receipt and expenditure, and to report a balance sheet monthly to Allen. Hawley was to contract no debt for which Allen would be liable to an amount exceeding $100, without Allen's consent, under penalty of forfeiture of the contract. The contract might at any time be dissolved by mutual consent, and if, during the second year, it should appear that the business of the place would not pay a profit annually equal to six per cent. on $50,000, the contract might be terminated, at the option of either party, upon thirty days' notice. Hawley was to make out and exhibit to Allen, semi-annually, an accurate statement of receipts and expenditures; and in consideration of rent, there was to be paid to Allen or his legal representatives, one half of the net profits, after allowing for all necessary expenses, including furniture, supplies, servants and repairs, (except such as were agreed to be done by Allen,) and any loss was to be equally divided. A failure by Hawley to make out true statements, or to pay over to Allen his share of the profits, or to perform any other of the conditions of the agreement, was to operate “forthwith to cancel and annul the agreement,” and authorize Allen or his legal representatives forthwith to resume possession of the premises and all improvements. Allen was to give no personal attention to the business. Hawley was to make no charge for the services of himself and wife, other than was covered by one half of the net profits. All furniture and other personal property, purchased and acquired by reason of the agreement, was to be jointly owned by the parties. Allen reserved the right at all times to visit and inspect the premises, and to sell the same subject to the contract.

The goods sued for were purchased by Hawley, between June and August, 1852, charged to him in the plaintiffs' books, and used by him in fitting up the buildings mentioned in the above agreement. Plaintiffs did not know of the existence of the agreement when they sold the goods. Hawley gave his own note for the goods in November, 1852, which was never paid. Hawley never complied with that stipulation...