Fish v. Fish
| Decision Date | 11 November 1957 |
| Docket Number | No. 7607,7607 |
| Citation | 307 S.W.2d 46 |
| Parties | Edna FISH, Plaintiff-Appellant, v. Olen FISH, Defendant-Respondent. |
| Court | Missouri Court of Appeals |
Wm. Duke Hiett, Houston, Hogan & Hogan, West Plains, for plaintiff-appellant.
Rogers & Rogers, Gainesville, for defendant-respondent.
On February 9, 1955, plaintiff filed her petition in two counts captioned 'Action for Accounting and Partition.' No issue is presented on this appeal with respect to the second count, in conventional form for partition of certain real estate owned by plaintiff and defendant, her former husband, as tenants in common, and plaintiff's-appellant's complaint is directed solely to dismissal of the first count of her petition in response to defendant's motion to dismiss for failure to state a claim upon which relief could be granted.
In the first paragraph of the first count, plaintiff alleged that she and defendant were married on January 10, 1940, in Douglas County, Missouri, and 'remained husband and wife' until they were divorced on September 27, 1954, in the Circuit Court of Howell County, Missouri; 'that during the time the plaintiff and defendant were husband and wife they acquired a large amount of real and personal property * * * as a result of the work and investments made by both parties and as a result of the contributions of money and labor by each of the parties'; that, at the time of their divorce, the parties 'owned and operated a store located on Highway 14' in Howell County, with 'living quarters' in the store, and 'owned land adjacent thereto * * * used for farming purposes; that said parties had operated said business and farm and resided there since on or about the lst day of May, 1951, at which time they agreed to acquire and operate a general store and farm and did acquire and commence operation of said general store business and farming business; that said business was acquired with money belonging to both the parties'; but, that defendant 'took possession of all of the real and personal property which was owned by the parties' when they separated about May 19, 1954, thereafter denied to plaintiff the right 'to use' or 'to have' any part of such property (although plaintiff requested defendant 'to divide said property with her'), and 'converted said real and personal property and home, farm and business of the parties to his own use and benefit.' The first paragraph then closed with repetitious averments 'that the money used to acquire said property had been furnished by both of the parties; and that the store and farm had been owned and operated by both the parties.'
In the second paragraph, plaintiff asserted that 'the property used in said business which is now owned by the parties as tenants in common' consisted of fixtures and appliances, 'goods and merchandise held for sale in the business,' notes and accounts 'due the plaintiff and defendant from customers,' and cash on hand, all having an aggregate value of not less than $4,180. In the third paragraph, plaintiff alleged 'that the parties hereto are also the owners as tenants in common' of a 1949 Ford pickup and certain livestock having an aggregate value of more than $1,305; and, in the fourth paragraph, plaintiff averred 'that the parties are the owners as tenants in common' of certain household goods and furniture worth more than $335, 'purchased with the earnings of the plaintiff and defendant.' After asserting 'that the only equitable manner of making a division of the assets is by the sale of the whole together and * * * a division of the proceeds between plaintiff and defendant according to their respective interests' and that she 'has no adequate remedy at law,' plaintiff prayed that a receiver be appointed with power to collect and dispose of the aforesaid property, and that, after payment of debts, expenses and costs, 'the proceeds be divided between the parties hereto, according to their respective interests.'
Upon this appeal, the determinative issue is whether the first count of plaintiff's petition (to which we hereinafter refer as the petition), 'so construed as to do substantial justice' [Section 509.250], states 'a claim upon which relief can be granted.' Section 509.300. 1 See City of St. Louis v. Whitley, Mo., 283 S.W.2d 490, 491(1). In resolving this question, the averments of the petition are to be construed liberally and accorded their reasonable and fair intendment, and the petition should be held sufficient if, so considered, its averments invoke substantive principles of law entitling plaintiff to relief. 2
The language of the trial court's order sustaining defendant's motion to dismiss indicates that plaintiff asserted then, as now, that her petition was predicated on the theory of a joint adventure between plaintiff and defendant in the ownership and operation of a general store and farm, wrongfully terminated (so plaintiff says) by her exclusion from the business and defendant's conversion of its assets to his personal use, all of which (if true) would permit invocation of the aid of a court of equity to cast up the accounts and adjust the rights of the parties. Brooks v. Brooks, 357 Mo. 343, 208 S.W.2d 279, 4 A.L.R.2d 826. The definition of joint adventure frequently approved by our courts is "a special combination of two or more persons, where in some specific venture a profit is jointly sought without any actual partnership or corporate designation, or * * * an association of persons to carry out a single business enterprise for profit, for which purpose they combine their property, money, effects, skill, and knowledge." Scott v. Kempland, Mo., 264 S.W.2d 349, 354(1), and cases there collected. Briefly stated, the principal requisites of a joint adventure are a community of interest in accomplishment of a common purpose, a joint proprietary interest in the subject matter, a mutual right of control, a right to share in any profits, and a duty to share in any losses. 3 As defendant here emphasizes, a joint adventure must rest on a contract or agreement between the parties. 4 However, no specific or formal agreement is required, and the contract may be implied or proved by facts and circumstances showing that the parties, in fact, entered into a joint adventure. 5
In his primary argument that the petition under review is insufficient because it 'nowhere makes any allegation as to a contract between the parties,' instant defendant contends that the allegation 'that said parties had operated said business and farm * * * since on or about the lst day of May, 1951, at which time they agreed to acquire and operate a general store and farm and did acquire and commence operation' thereof, means no more than that 'the acquisition was with her (plaintiff's) permission or consent.' (All emphasis herein is ours.) We recognize that 'consent' is listed among the dictionary synonyms for 'agree.' Webster's New International Dictionary (2nd Ed.), p. 51. However, it 'is not an exact synonym' [Smith v. Jones, 185 Ga. 236, 194 S.E. 556, 560]; and, when framed in a legal setting, 'agreed' usually carries the connotation of 'contracted.' 6 Likewise, the noun 'agreement' frequently is treated as synonymous with 'contract' 7 and obviously is so used and employed in the judicial writings on joint adventure. E. g., witness the oft-quoted language of Denny v. Guyton, 327 Mo. 1030, 40 S.W.2d 562, 571, that a joint adventure 'can arise only by contract or agreement between the parties' but 'may be established without any specific formal agreement.' Furthermore, the use of 'they' in the quoted averment that 'they agreed to acquire and operate a general store and farm' implies mutuality and forecloses the construction (for which defendant contends) of unilateral permission or consent by plaintiff. In short, there is no more difference between 'they agreed' (as used in the petition) and 'they contracted' than between tweedledum and tweedledee.
The petition includes allegations that plaintiff and defendant 'acquired a large amount of real and personal property * * * as a result of the work and investments made by both parties and as a result of the contributions of money and labor by each of the parties,' again 'that the money used to acquire said property had been furnished by both of the parties,' more specifically 'that said business (i. e., the general store and farm) was acquired with money belonging to both the parties hereto,' and finally 'that the store and farm had been owned and operated by both the parties.' True, as defendant here complains, the petition does not recite the exact amount of money invested by either party nor the source of the money alleged to have been contributed by plaintiff. However, plaintiff's obligation was to plead the essential ultimate facts of her cause of action, not the evidence by which those ultimate facts were to be proved. 8 And, if the petition was indefinite or uncertain in the aforesaid particulars, we may not, for that reason, find it wholly insufficient. 9 Such frailties and imperfections are to be reached under our present code of civil procedure [Section 509.310], as formerly, 10 by motion to make more definite, but they do not render a petition fatally defective and subject to a motion to dismiss (which performs the same function as a demurrer under our prior code) 11 if a cause of action may be implied from the allegations of the petition by liberal construction and by reasonable and fair intendment. 12
Defendant's further point that the petition does not show 'the time either (party) should spend in the operation of the business' is without substance. For, with the repeated observation that 'the great majority of such agreements * * * do not point out precisely what each party is to do under them,' 13 our courts have made it unmistakably clear that a contract or agreement for a joint adventure may not be avoided because of uncertainty or indefiniteness in minor...
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