Donnell v. Harshe

• Decision Date: 31 October 1877
• Citation: 67 Mo. 170
• Parties: DONNELL v. HARSHE, Plaintiff in Error.
• Court: Missouri Supreme Court

67 Mo. 170

DONNELL

v.HARSHE, Plaintiff in Error.

Supreme Court of Missouri.

October Term, 1877.

Error to St. Francois Circuit Court.--HON. WILLIAM CARTER, Judge.

This was a suit upon an account for materials used and labor done, in the repair of a house. The answer denied the allegations of the petition, and set up a counter claim. The replication denied all the allegations of the answer in reference to the counter claim, and further alleged that the counter claim and demand of defendant grew out of and was connected with the business of a copartnership, which remained wholly unsettled and unadjusted, and that the copartnership had never been dissolved but was still in full force.

Nalle & Bush for plaintiff in error.

The instruction given by the court in behalf of the plaintiff, is an anomaly in our jurisprudence, without foundation or analogy in the jurisprudence of the other States, or of the mother country. Campbell v. Dent, 54 Mo. 325; Collier on Partnership, pp. 3, 23, 25; Stoallings v. Baker, 15 Mo. 481.

A partner has a right to withdraw, and thereby dissolve the copartnership, at any time, and at his pleasure. The instruction, in assimilating tenancies to partnerships, would give the parties to a tenancy the same right to withdraw and dissolve the tenancy, as a partner would have.

Carter & Clardy for defendant in error.

The instruction, of which defendant complains, is unobjectionable. Story on Partnership, p. 4. Sec. 4; Whitehill v. Shickle, 43 Mo. 537; Maclay v. Freeman, 48 Mo. 234; McKnight v. McCutchen, 27 Mo. 436.

NAPTON, J.

The principal and decisive question in this case is the propriety of the following instruction given by the court. “The court instructs the jury that a copartnership is an agreement between two or more persons of sufficient capacity to contract, to carry on a given business and share the profits of such business; and, if the jury believe from the evidence in this case that there was either a verbal or written agreement between the plaintiff and Emeline Harshe, by which the former was to occupy and cultivate the farm of said Emeline Harshe for any given length of time, and that each was to receive a moety or share of the crops raised or grown thereon under such agreement, then such farming was a co-partnership business, and belongs to another adjustment, and must be settled or adjusted in a different form of action, and cannot be made available in this action; and, if they find that the matters embraced in defendant's account were connected with or arose out of such business, they will exclude all evidence of such account from their minds,” &c. The evidence in the case is not stated in the bill of exceptions, but it is stated that evidence was offered tending to prove that plaintiff and defendant entered into an agreement by which plaintiff was to cultivate a farm of defendant, lying in St. Francois county, on shares; that plaintiff and defendant were each to defray one moiety of the expenses attending such cultivation of said farm, and were to share equally in the profits thereof. The instruction asserts, as a matter of law, that the occupancy and cultivation by one of the farm of another, under an agreement that the owner and occupant will divide the crops raised in an agreed proportion, constitutes the owner and occupant co-partners. This is probably a very common mode of leasing farms in this State, but the proprietor and occupant might be equally surprised to be informed that they were partners.

A definition of partnership, broad enough to embrace all cases and narrow enough to exclude such as ought to be excluded, has been found a very difficult and embarrassing task to those writers who have published books on the subject. The courts have been embarrassed also in nice refinements about partnerships per sese, and partnerships which are only as to creditors. Indeed, Judge Story, after a prolonged examination of these...