Cramer v. Bachmann

• Decision Date: 31 October 1878
• Citation: 68 Mo. 310
• Parties: CRAMER v. BACHMANN, Appellant.
• Court: Missouri Supreme Court

68 Mo. 310

CRAMER

v.BACHMANN, Appellant.

Supreme Court of Missouri.

October Term, 1878.

Appeal from Cape Girardeau Court of Common Pleas.--HON. H. G. WILSON, Judge.

Houck & Ranney for appellant, cited Lewis v. Moffett, 11 Ill. 398; Marsh's Appeal, 69 Pa. St., 30; Bradford v. Kimberly, 3 Johns. Ch. 431, and Story on Partnership, § 182.

Wilson Cramer for respondent.

It is well settled that one partner is not entitled, as against the other partners or the firm, to any compensation, commission or reward for his skill, labor or services employed in the partnership business, unless there be an express agrement to that effect. Story on Partnership, (5 Ed.) § 182, and cases cited in note 5; Ibid, § 185, and cases cited; Parsons on Contracts, vol. 1, (4 Ed.) bottom page 197; Lewis v. Moffett, 11 Ill. 392; Bennett v. Russell, 34 Mo. 524. All the authorities concur that the agreement must be express or special, and cannot be implied, except, perhaps, when the parties themselves have made previous settlements upon that basis, or where the services are such as were outside of the immediate scope of the partnership, and not directly required of the partners by reason of their being such. Smith's Mercantile Law, p. 61, note; Lewis v. Moffett, supra. The facts in this case fail to bring it within these principles.

SHERWOOD, C. J.

Plaintiff brought suit in 1875 against defendant for dissolution of the partnership existing between them, under the name and style of Bachmann & Co., formed in 1866, and also for an account to be had and taken.

A referee being appointed, took an account and made report, which was approved, except in one particular, which was the allowance rendered of compensation to the defendant for services to the firm of which he was a member, there being no articles of co-partnership, and no written or express agreement for the allowance of such compensation, and as is agreed, the correctness of this ruling is the only point to be determined.

The chief purpose of the partnership was the growth of grapes and the manufacture of wine. There was nothing definite agreed upon at the time of the formation of the partnership, only that a certain out-lot containing some forty acres, was to be purchased for partnership purposes by Cramer, and a deed to the undivided half thereof was to be made by him to Bachmann. The amount thus paid Cramer for Bachmann's share of the lot was refunded to him out of the profits realized.

It is quite evident, from the testimony, that Bachmann was looked to and relied on to accomplish the object which induced the formation of the partnership. Under his skilled labor and superintendence a dwelling house, wine cellar, stable and outhouses have been built, and a large portion of “a rough bare ridge, full of stumps,” has been transformed into a fruitful vineyard, and an extensive and various orchard. Bachmann continued to labor on the place until 1870, adding to its value every year by labor and capital, when becoming disgusted with the failure of Cramer to convey to him the undivided half of the out-lot as he had agreed, he sent the key of the wine cellar to Cramer and made preparations to return to St. Louis from whence he, at the request of Cramer, had come. The latter ascertaining that Bachmann was in earnest, came to him, returned the key of the wine cellar, made him a deed as he had promised four years before, agreed to make a contract with him looking to his compensation for former as well as future services, and handed him an agreement known in the record as “exhibit E,” to sign, which writing gave recognition to the idea that Bachmann was entitled to remuneration for both prior and subsequent labors in the interest of the firm. This agreement Bachmann refused to sign, because not regarding the compensation therein specified sufficient, but returned again to his labors, in which he continued until the present proceeding resulted in a decree for dissolution.

There can be no dispute as to the general prevalence of the rule invoked by plaintiff, that a partner is not...