Gauldin v. Corn, 11105
| Decision Date | 01 February 1980 |
| Docket Number | No. 11105,11105 |
| Citation | 595 S.W.2d 329 |
| Parties | Claude GAULDIN, Plaintiff-Appellant, v. Joe CORN, Defendant-Respondent. |
| Court | Missouri Court of Appeals |
Kenneth A. Wagoner, Richard D. Moore, Moore & Brill, West Plains, for plaintiff-appellant.
Don M. Henry, Harold L. Henry, Henry, Henry & Henry, West Plains, for defendant-respondent.
On July 18, 1977, plaintiff filed a petition in the Howell County Circuit Court for dissolution and accounting of a partnership entered into between plaintiff and defendant. Defendant answered, claiming that the parties had already dissolved the partnership and divided the assets. Trial by court followed.
After trial, the trial court filed its findings of fact and conclusions of law and entered judgment in favor of defendant and against plaintiff. Plaintiff filed his First Amended Motion to Amend the Judgment and Opinion asking the trial court to make a specific finding on whether there was an agreement for distribution of the fixed assets. The trial court sustained the motion and found that the parties had no agreement regarding the disposition of fixed assets upon dissolution. This appeal followed.
The following evidence was presented to the trial court. Defendant Joe Corn, testified that in October, 1966, he entered into a 50-50 partnership with plaintiff Claude Gauldin for the purpose of raising cattle and hogs. Defendant and plaintiff contributed equally to getting the business started. The partnership business was carried out on approximately 25 acres of an 83 acre tract of land owned, at the beginning of the partnership, by defendant's parents and later acquired by defendant and his wife.
The bulk of the partnership profits were put back into the business. Some of the profits were used to improve the 25 acres on which the cattle and hogs were raised. Partnership money was used to fence in 10-15 acres and to repair already existing fence. Top dressing and seed, costing $2,000.00, was placed on some of the land. A machine shed, or barn, was built on the land while it was still owned by defendant's father. Defendant testified that the barn cost either $2,487.50 or $2,400.00. He said that a Cargill unit was built on the property in 1975 at a cost of either $8,000.00 or $7,995.00.
At time of trial, both the barn and the Cargill unit were still on the property. Neither could be removed from the land. Defendant testified that neither building could be used for anything other than the raising of cattle and hogs, that he was no longer in the business because of his health, and that the buildings were therefore useless to him and had no value. Defendant admitted, however, that the land was put into better shape by the labors of the partners and that the value of the land was increased thereby.
The partnership never paid any rent on this property either before or after defendant owned it. Nor did plaintiff pay any rent after the partnership was dissolved. However, no rent was ever requested. Defendant testified that there was an understanding between plaintiff, defendant, and defendant's father, at the beginning of the partnership, that any improvements or structures placed on the land during the course of the partnership would become part of the real estate. This was because the partnership had no money to pay rent at that time.
In 1975, defendant's health began deteriorating and his doctor advised him to get out of the hog business. In January, 1976, he told plaintiff that he could not go on and that he had lined up a party who would purchase his interest in the partnership. Plaintiff said that he wasn't interested and made defendant a give or take proposition of $7,500.00. The proposition was coupled with a proviso that plaintiff be allowed to remain on the land and carry out his business for 5 years. Defendant rejected this offer. Nothing was mentioned at that time about removable assets.
Plaintiff continued operating the business on defendant's land and stayed until May, 1977. In March, 1977, defendant accepted plaintiff's offer of $7,500.00 and plaintiff paid off a $1,500.00 note, owed by the partnership, in exchange for the right to remain on the land through May. The receipt for the $7,500.00, which defendant signed in March, 1977, indicated that it was payment for removable assets only.
Plaintiff's testimony concerning the formation of the partnership, paralleled that of the defendant. There was no formal partnership agreement and plaintiff denied that there was any conversation between plaintiff, defendant, and defendant's father, prior to starting the business, concerning partnership improvements becoming part of the real estate in lieu of rent. He testified that the barn, which was built in 1970 at a cost of $2,500.00, had a value of $4,000.00 at time of trial and that the Cargill unit, built in 1975 for $8,000.00, was worth $10,000.00 at time of trial. The parties did not have an agreement, at the time that these units were built, as to how their value would be divided if the partnership was dissolved. One small pond was dug at a cost of $150.00, and a larger pond was included in the cost of the Cargill unit. Seeding and fertilizing was done on the land where the cattle would be grazed. No cash rent was paid for the use of the land, nor was any partnership money expended for taxes or upkeep. Plaintiff admitted on cross-examination that "anytime something was put on the land, it was part of the real estate."
In January, 1976, defendant informed plaintiff that he wanted to quit the business. Plaintiff testified that defendant did not inform him that he (defendant) had someone lined up to purchase defendant's half of the partnership. Plaintiff made a list of all removable assets, based on the price originally paid for them, which indicated they were worth $15,000.00. He offered defendant $7,500.00 for defendant's share of the removable assets. Defendant did not make a counter-offer. Plaintiff continued to operate the business alone and paid partnership debts that year.
In the fall of 1976, defendant told plaintiff that he would get some disinterested party to get together with plaintiff and try to work something out. Plaintiff met with defendant's brother-in-law, who took plaintiff's $7,500.00 offer to defendant. Defendant rejected it. In March, 1977, defendant called plaintiff and said that he wanted the $7,500.00 or he would sell plaintiff's stock, and anything else that could be removed from the land, within a week. Defendant would not negotiate further. Plaintiff paid the $7,500.00 only after the threat to sell. He did not pay any interest on the $7,500.00, nor had he paid any rent for using the land after January, 1976 (none was requested). Plaintiff got the removable assets for the $7,500.00. Defendant never paid him anything for the fixed improvements.
On cross-examination, plaintiff testified that his give or take offer was for removable assets only. Defendant's counsel then read the following from plaintiff's deposition: At the close of plaintiff's testimony, defendant's counsel read more excerpts from plaintiff's deposition as admissions against interest. These indicated that plaintiff knew, at the time that the buildings were being constructed, that they were being permanently attached to the real estate and would become a part of it. Nothing concerning the partnership was in writing. Plaintiff knew that, if the land was sold to somebody else or if they quit the business, he would lose it all.
Robert Hinds, who at the time of trial was in business with plaintiff, estimated that the fair value of the Cargill unit was $8,000.00 and that the fair value of the barn was $3,500.00. Defendant's land was worth $200.00 an acre in 1966, when the partnership began. Natural appreciation had increased the value of the land $550.00 an acre to $750.00 an acre. With the improvements, absent the feeding barn, the value of the land, at the time of trial, was $1,000.00 an acre. Dee Franklin, an accountant and tax consultant, testified concerning the preparation of the partnership's income tax returns for the years 1968-1975.
Upon completion of all of the testimony, the case was taken under advisement by the court. On June 13, 1978, the trial court issued its findings of fact and conclusions of law. The court found that the parties had entered into an oral partnership agreement to share costs, labor, losses, and profits equally; that the business was started on land owned by defendant's parents and acquired by defendant and his wife in February, 1971; that no rent was paid for the use of the land and no agreement existed to consider the use of the land as a contribution by defendant; that the machine shed/barn was built in 1970 at a cost of $2,487.50; that the Cargill unit was built in 1975 at a cost of $8,000.00; that $1167.83 was paid out of partnership funds to seed and fertilize the land between 1969-1975; that fences were improved and new ones built with partnership money; that partnership funds were used to clear or bulldoze the land; that all improvements to the land were made for and used by the partnership; that the partnership was dissolved in January, 1976; that in March, 1977, plaintiff paid defendant $7,500.00 and took a receipt for all "removable assets"; and that plaintiff and defendant had no agreement regarding the distribution of fixed assets upon dissolution of the partnership. The court found for defendant and against plaintiff, who took nothing. This decision was based on reasoning that defendant did not own the land during the period of the partnership, since it was owned either by defendant's parents or by defendant and...
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Zaharopoulos v. Sprenger, 41284.
...unless there is no substantial evidence in support thereof, or they are against the weight of the evidence. Gauldin v. Corn, 595 S.W.2d 329 (Mo.App.1980); Cave v. Cave, 593 S.W.2d 592 (Mo.App.1979). Further, the trial court entered no specific findings of fact, defendants having withdrawn t......