Bussinger v. Ginnever

• Decision Date: 02 July 1948
• Docket Number: No. 27379.,27379.
• Citation: 213 S.W.2d 230
• Parties: BUSSINGER v. GINNEVER.
• Court: Missouri Court of Appeals

213 S.W.2d 230

BUSSINGER v. GINNEVER.

No. 27379.

St. Louis Court of Appeals. Missouri.

July 2, 1948.

Appeal from Circuit Court, St. Charles County; Theodore Bruere, Judge.

"Not to be reported in State Reports."

Suit by Louis C. Bussinger against Thomas H. Ginnever for dissolution of a partnership, appointment of a receiver and an accounting. Judgment for defendant and plaintiff appeals.

Affirmed.

Paul F. Niedner, Robert V. Niedner and Niedner & Niedner, all of St. Charles, for appellant.

William Waye, Jr., of St. Charles, for respondent.

McCULLEN, Presiding Judge.

This suit was brought by Louis C. Bussinger, as plaintiff, against Thomas H. Ginnever, as defendant, for the dissolution of an alleged partnership, the appointment of a receiver, and an accounting. After a trial before the court there was a finding and judgment by the court for defendant. Plaintiff duly appealed.

Plaintiff's petition, in Count One, alleged that he and defendant, on September 15, 1944, entered into an oral agreement whereby they were to become partners from and after said date in the business of selling and servicing refrigeration, electrical and bottle gas equipment, including bottle gas, in and about O'Fallon, Missouri; that from and after said date plaintiff and defendant were to share equally in the profits and losses of said business and to own equally the assets and good will of the business, with mutual and equal rights of control and management thereof.

Plaintiff's petition further alleged that plaintiff operated, managed and controlled the business of the partnership, and that defendant remained absent from the business until January 15, 1946, at which time defendant returned, and that both operated it together to their mutual benefit, but that on August 15, 1946, defendant excluded plaintiff from further participation in the business, forcing plaintiff to withdraw from the operation thereof; that said business, on August 15, 1946, owned a large stock of goods, merchandise and equipment of a value in excess of $7,000; that there was due said business a large amount of accounts and indebtedness. The petition contained a prayer for dissolution of the partnership and that a receiver be appointed to take charge of the property rights and good will thereof with power to collect and dispose of the same to the benefit of all the parties in interest, and that the proceeds be divided between the parties according to their respective interests.

Count two of plaintiff's petition alleged that defendant continued the operation of said business from and after August 15, 1946, to his own and sole benefit, wrongfully precluding plaintiff from continued operation thereof, refused to pay to plaintiff any part of the profits from said business, and refused to account to plaintiff therefor after said date. Count two concluded with a prayer that defendant be required to render an accounting of said business and to pay plaintiff one-half of the net profits thereof from and after the aforesaid date.

For answer, defendant denied each and every allegation in both counts of plaintiff's petition. The answer then specifically denied that defendant and plaintiff were partners; denied that defendant ever entered into any agreement, verbally or in writing, whereby he became or intended to become a partner of plaintiff in said business. Defendant alleged in his answer that the business and property referred to in plaintiff's petition are and at all times were the business and property of defendant, and that plaintiff does not have and never had any interest therein.

The evidence shows that plaintiff was employed by defendant in August, 1942, to service refrigerators and bottle gas equipment for defendant's customers; that defendant owned and conducted such business at O'Fallon, Missouri; that defendant took an active part in the business until November 18, 1942, when he enlisted in the Army. It further appears that from that time until September 13, 1943, when defendant went into active service in the Army, he spent little time at the business, but plaintiff continued in defendant's employ, and that defendant and defendant's wife kept the books of the business.

Plaintiff testified that in September, 1944, he advised defendant that he could no longer afford to work for defendant as an employee; that defendant asked plaintiff to stay with the business and told plaintiff that he would be a full partner if he would keep the business together until the war was over; that defendant told plaintiff at that time that they would split the profits fifty-fifty. On this point defendant testified that what he told plaintiff at that time was that he was not interested in any partnership in the business but that they would split the profits fifty-fifty, and that this split was to date from defendant's return from the Army, and that plaintiff was to receive one-half of any increase in the inventory or valuation when defendant returned.

Plaintiff further testified that after defendant's return to O'Fallon from the Army, in January, 1946, he and defendant operated the business as a partnership; that both parties passed on all work, purchases, and contracts, and that both had access to the books; that they employed help together, and both directed the work of their employees; that defendant applied for a GI loan on behalf of the partnership, but that it was refused; that defendant told plaintiff at that time that the loan was refused because plaintiff, who was not a GI, would benefit by such a loan and that would be against the rules.

There was further testimony by plaintiff that the moneys from the business were deposited during 1944, 1945, and 1946, in the bank; that both parties signed checks on the bank account of the business; that the checks were printed with the names of both thereon; that both parties executed notes and chattel mortgages to the Bank of O'Fallon during the course of their business; that advertising cards printed for the business contained the names of plaintiff and defendant, together with that of an employee named Schulte; that plaintiff and defendant divided the profits and paid off the business debts out of the business income.

Plaintiff testified that after January 1, 1945, and until January, 1946, while defendant was away, he (plaintiff) operated the business as a partnership; that plaintiff's income after December 31, 1944, was reduced from the amount of salary which he had previously received; that this resulted in an increase in the assets of the business; that no social security or Federal income tax was withheld from his income; that he (plaintiff) kept the books at that time and had complete control of the business; that defendant agreed to the printing of business checks bearing both plaintiff's and defendant's names; that plaintiff paid bills incurred by defendant prior to plaintiff's leaving the business.

Plaintiff further testified that a Federal income tax withholding statement filed in March, 1945, made out by him, showed that the business was: "Bussinger and Ginnever, d/b/a Rural Electric and Gas Company," and that he put the statement thereon —"No Employees"; that on that statement he stated: "Previous owner was Tom Ginnever d/b/a Rural Electric & Gas Co., Route 40, O'Fallon, Mo. Iden. No. 43-0289887. New ownership to carry on as a partnership effective Jan. 1, 1945, and operated under name of Louis C. Bussinger and Thomas Ginnever d/b/a Rural Electric & Gas Company, O'Fallon, Missouri." Plaintiff stated, however, that the above quoted matter appearing on said statement was put on by Mr. Debrecht, Deputy Clerk of Internal Revenue, but that it was put on because he (plaintiff) requested it; that said statement was dated March 31, 1945; that he didn't know where Ginnever (defendant) was at that time.

Plaintiff testified that in August, 1946, he asked to buy defendant out or that defendant buy plaintiff out; that defendant offered to sell out to plaintiff for $5000; that plaintiff came back with a counter offer to buy out defendant for $3500 or that he would take $3500 for his (plaintiff's) share, but that defendant would not accept that proposition; that defendant told plaintiff that he (plaintiff) had an equity in the business but that an audit would have to be made to determine how much plaintiff had coming to him.

Defendant testified that he received some share of the business income while he was in the Army. With respect to the oral agreement of partnership alleged by plaintiff to have been made in September, 1944, defendant testified that what occurred was:

"* * * Mr. Bussinger came to me, sitting in the back yard at the O'Fallon location, the exact date I do not recall, and asked me if half interest in the business was for sale. I said, `No Louie, I am not interested in a partnership in business,' and he said well, he would like to have some interest in the business so he would have some reason to continue to work. I said he didn't have to buy in order to share in the profit, we would split the profits 50-50 at the conclusion of the war, and that was the only statement to that effect.

* * * * * *

"Q. Now then, as far as the profit, what was he to do to keep the business going? A. That was the incentive for him. He had nothing to buy with. * * * He told me he had nothing to buy with but he thought perhaps he could make some arrangement.

* * * * * *

"Q. Did he tell you what arrangements he could make? A. No.

"Q. Did he ever make you an offer for half of the business? A. After I returned.

"Q. Not before? A. No.

"Q. Now then, for the 50-50 of the profits that was to date from the time you went in the Army? A. No, that was from the time I would return; that was the only agreement on the splitting of the profits — from the time I was to return.

* * * * * *

"Q. During this period of time was there any division of profits made? A. No, sir."

Defendant further testified that after he got back from the...