Burdall v. Johnson

• Decision Date: 03 December 1906
• Citation: 122 Mo. App. 119,99 S.W. 2
• Parties: BURDALL v. JOHNSON.
• Court: Missouri Court of Appeals

99 S.W. 2

122 Mo. App. 119

BURDALL v. JOHNSON.

Kansas City Court of Appeals. Missouri.

December 3, 1906.

Rehearing Denied January 14, 1907.

1. APPEAL — REVIEW — QUESTIONS OF FACT— FINDINGS BY JURY—EFFECT IN EQUITABLE ACTION.

The findings of a jury in a suit in equity are not binding on the trial court, nor on the appellate court.

2. SAME—PRESUMPTIONS—THEORY OF ACTION AND DEFENSE.

Where, in a suit in equity, the court adopted the verdict of the jury under instructions, on appeal the appellate court was authorized to conclude that the finding was based on the same theory embodied in the instructions.

3. PARTNERSHIP—ACTION BETWEEN PARTNERS —BREACH OF CONTRACT.

In an action by one partner against another for damages resulting from breach of the partnership agreement, consisting of defendant's having withdrawn his services from the firm, plaintiff testified that there had been an increase in the profits from the time defendant ceased to render services, but accounted for the increase on the ground that the business was growing, and he testified that the partnership would have made double the amount of profits if defendant had not withdrawn his services, but did not show how such profits could have been realized. Held, that there was no competent evidence to sustain a verdict for plaintiff.

Appeal from Circuit Court, Linn County; John P. Butler, Judge.

Action by Helen Burdall against Albert Johnson for damages and for a partnership accounting. From a judgment and decree in favor of plaintiff, defendant appeals. Judgment reversed, and decree modified.

Tunnell & Hart, for appellant. West & Bresnehen, for respondent.

BROADDUS, P. J.

Plaintiff commenced her action against defendant in December, 1905, for an accounting upon a partnership agreement entered into between the parties on the 16th day of January, 1901, and also for damages for the alleged failure of the defendant to perform the conditions of the partnership agreement. At the time of the agreement, defendant Johnson was engaged in the ice business in Brookfield, Mo., and Jonathan Burdall, plaintiff's husband, was operating a coal mine near that place, and it was agreed in writing that plaintiff and defendant would form a partnership for the purpose of operating the coal mine and selling the produce in the business established by defendant, and also to carry on the ice, coal, and wood business. Defendant had been in business for some time previous, and owned an icehouse and pond for the harvesting and storage of ice, and ice tools, wagons, teams, and other property used in the business. The contract of partnership in substance was: That Johnson was to put into the partnership the good will of his business, his ice tools, wagons, and other property mentioned, and the use of his icehouse and pond, and plaintiff to put into the business the use of her coal mine. The title of the real estate of the respective parties to remain in them. Among other things, it was agreed as follows: "Each of said partners shall receive the sum of $35 per month as salary and in consideration thereof the said Johnson shall give his whole time to the said business, and the said Helen D. Burdall shall furnish the services of J. Burdall, who shall give all his time to the business of said co-partnership, and the said J. Burdall shall take the place of and in all matters represent the said Helen Burdall." The contract contained the following clause providing for differences between the parties in case of the dissolution of the partnership, viz.: "In case of such dissolution, if the parties cannot agree upon a settlement of their affairs, and cannot agree upon the value to be placed upon permanent improvements hereinbefore mentioned, or in any other matters cannot agree upon a settlement of their partnership business, they shall arbitrate the matter in this way: Each party shall choose a competent disinterested man. If they cannot agree upon a settlement, they shall choose a third...