Gaston v. Kellogg

• Decision Date: 28 February 1887
• Citation: 3 S.W. 589,91 Mo. 104
• Parties: Gaston v. Kellogg et al., Appellants
• Court: Missouri Supreme Court

3 S.W. 589

91 Mo. 104

Gaston v. Kellogg et al., Appellants

Supreme Court of Missouri

February 28, 1887

Appeal from Chariton Circuit Court. -- Hon. G. D. Burgess, Judge.

Affirmed.

W. W Rucker and Andrew Mackay, Jr., for appellants.

(1) This court will review the evidence and findings of the referee, as the suit is of an equitable character, to settle the co-partnership affairs. Hodges v. Black, 76 Mo 537; Holt v. Simmons, 16 Mo.App. 97. (2) Ordinarily a partner cannot recover of the firm compensation for his services rendered the same, unless there is a contract therefor, express or implied, or an agreement for such compensation; the burden, of course, being on the partner, thus claiming, to show his right to the same. Lee v. Davis, 70 Ind. 464; Lassiter v. Jackman, 88 Ind. 118; McBride v. Stradley, 103 Ind. 465; Story on Part. [7 Ed.] p. 304, sec. 182; Parsons on Part. [3 Ed.] p. 250, sec. 230; Cramer v. Bachman, 68 Mo. 310.

O. F. Smith and A. W. Mullins for respondent.

(1) Upon the record in this case no question arises as to whether or not the court properly approved the referee's report. It does not appear, from the bill of exceptions, that the defendants filed exceptions to the report. In such case, the report being formal, it was the duty of the court to confirm the report and render judgment thereon. 1 R. S., secs. 3622-23; Reinecke v. Jod, 56 Mo. 386. (2) The statute (R. S., sec. 3623) provides that judgment shall be rendered on the referee's report, when confirmed, "in the same manner and with like effect as upon a special verdict." And, if the referee's report is sufficiently regular and formal upon its face to support a judgment, then the party complaining must file exceptions thereto within four days, in term, after the report is filed, otherwise the report will be confirmed and "judgment shall be rendered thereon." See authorities supra. A motion for a new trial is unavailing unless the exceptions are duly filed to the report and then exceptions taken and saved to the ruling of the court thereon. (3) But if the case be reviewed upon the whole facts appearing in evidence, then we insist that the judgment is clearly right, and well and amply supported by the evidence. From the facts and circumstances in proof the presumption arises that plaintiff was to be compensated for his labor; but the proofs further show, and, we think, conclusively, that the plaintiff was employed by special contract and rendered the services claimed by him under such contract. And it would be inequitable for him to be required to sustain a greater loss than his co-partners. Cramer v. Bachmann, 68 Mo. 310; Bradford v. Kimberly, 3 Johns. Ch. 431; Levi v. Kaurick, 13 Iowa 344; 1 Parsons on Cont. [5 Ed.] 203; Story on Part. [4 Ed.] secs. 182, 182a.

OPINION

Norton, C. J.

This is a suit instituted in 1881 for dissolution of a partnership and an accounting. The petition states that, in July, 1875, the parties, by written contract, entered into partnership under the name and style of "Chariton County Mining Company," and the partners purchased a mine in Summit county, Colorado, and that, by employment by said defendants, as such company, plaintiff began work in said mine, known as the "Battel Tunnel Mine," in said county, on August 9, 1875, and continued to thus work until November 9, 1876; that his labor and services therein were reasonably worth five dollars per day; that said parties were to share equally all expenses and liabilities incurred by said company in said business; that his services were greatly in excess of the sum due from him as one of the partners in said mining company; that there has been no dissolution of said partnership or settlement of the accounts thereof; that defendants are indebted to plaintiff; he, therefore, asks for a dissolution of the partnership, and for an accounting thereof.

The answer of the defendants was a general denial. The case was referred to a referee to take the account and report, who, on the eighteenth of June, 1883, made the following report with the evidence taken by him:

"That there were nine parties in the partnership as alleged; that each of said partners, except John Gaston, put in cash to the amount of $ 1,093.15; that John Gaston, the plaintiff, put in three hundred and ninety days' labor, worth four dollars per day, $ 1,560; that the total amount put into said partnership in work and labor was $ 10,305.20; that the whole amount put in was an entire loss; that the proportion of loss to each man in said partnership was $ 1,145; that the excess of Gaston's loss above his proportion was $ 415; that Gaston received from the company, in cash, $ 160; that there is now due Gaston on settlement, $ 255; that each of the other parties to the partnership...