Hindman v. Secoy

• Decision Date: 14 January 1920
• Docket Number: No. 2486.,2486.
• Parties: HINDMAN v. SECOY.
• Court: Missouri Court of Appeals

218 S.W. 416

HINDMAN v. SECOY.

No. 2486.

Springfield Court of Appeals. Missouri.

January 14, 1920.

Rehearing Denied February 28, 1920.

Appeal from Circuit Court, Pemiscot County; Sterling H. McCarty, Judge.

Action by W. T. Hindman against Lon Secoy. Judgment for plaintiff on a plea in abatement and also on the merits, and defendant appeals. Reversed.

S. J. Jeffress, of Hayti, J. E. Duncan and Sam J. Corbett, both of Caruthersville, for appellant.

Ward & Reeves, of Caruthersville, for respondent.

BRADLEY, J.

Plaintiff sued in attachment to recover the sum of $328.73. The plea in abatement and the merits were tried to separate juries, resulting in judgments for plaintiff sustaining the attachment and on the merits for the amount sued for, and defendant has appealed on both branches of the case.

Plaintiff's petition is in three counts. In the first he asks judgment for $206.70 for liquors sold to defendant on August 30, September 2, 6, and 9, 1916. In the second he asks judgment for $19.16, which he paid September 5, 1916, for defendant to the Caruthersville Electric Light & Power Company. In the third he asks judgment for $102.87, the amount of a judgment in favor of one Ford and against defendant, which plaintiff paid on February 16, 1917. The seventh, eighth, ninth, tenth, and fourteenth grounds (section 2294, R. S. 1909) are alleged in the affidavit for attachment. Defendant makes several assignments of error, but as we view the record it is only necessary to consider the question of partnership. Defendant contends that the items sued for are covered by a partnership agreement between plaintiff and defendant, and that plaintiff cannot maintain this cause at law.

August 31, 1916, plaintiff was operating a wholesale liquor business in Caruthersville under the name of Caruthersville Liquor Company, and defendant was a retail liquor dealer and was operating a saloon in said city. Plaintiff and defendant entered into the following contract:

"This agreement made and entered into by and between Lon Secoy, of Caruthersville, Mo., party of the first part, and W. T. Hindman, of Caruthersville, Mo., party of the second part, witnesseth: Whereas the said party of the first part is a dramshop keeper in the city of Caruthersville, Mo., and now has a license, and is operating said dramshop at No. 122 Ward avenue in said city, and is desirous of securing financial assistance in the way of securing a stock of wine, liquors, and cigars and such other goods as are needed for said trade, and the further consideration of the mutual agreements hereinafter made as follows, it is agreed by and between the parties hereto that the said party of the second part will furnish the money to pay and discharge the indebtedness of the said first party, which amounts to $445, as fast as the same matures and demand is made therefor, and that the said party of the second part will furnish all the necessary wine, liquors, cigars, and other goods necessarily needed in said business and that the said first party is to furnish the money for the license. It is understood and agreed that out of the proceeds of the sale the said second party is to be reimbursed or paid the money he is out in paying the debts for the said first party, and for his wines, liquors, cigars, and other stock furnished as aforesaid, also any and all other expenses he may be out or used for the necessary operation of said business, which said amount is to come out of the proceeds of the sales of said business; that the said party of the first part is to work in the capacity of bartender and to give his full time to said work, and for his services he is to receive as a salary therefor the sum of $75 per month, and the said party of the second part is to have full control of the management of said business, contract all debts, employ all help, pay off and discharge the same as he thinks is to the best interest of the said business, and at all times make such changes in the conduct, management, and operation of such business as the said second party may think best. It is understood and agreed that the said first party is not to draw anything out of said business, except his salary of $75 per month, until at such time by mutual consent of both parties there is a dividend made out of said business. It is further understood and agreed that the said party of the second part for his services as manager and his help in a financial way is to receive 50 per cent. of the net profits of said business. It is understood and agreed that no goods are to be sold on credit to any one without mutual consent of both parties. This contract is to take effect August 31, 1916, at 6 o'clock p. m., and is to remain in force until ____.

"In witness whereof, we have hereunto set our hands to this contract, in duplicate, this the 31st day of August, 1916."

Plaintiff contends that the liquor account declared on in the first count of his petition and the electric light account set out in the second count were accrued obligations against defendant before the contract was signed, and that the judgment item set up in the third count was not embraced within the contract and was not contemplated as one of the debts of defendant at the time of the execution of the contract, and that he pale this judgment item by direction of the defendant. Plaintiff also contends that they never in fact operated under the contract and that the contract "didn't amount to a row of pins," and that he, plaintiff, entered into the contract in order only to help defendant out financially. Defendant testified positively that they did operate under the contract until they disagreed and had a fight early in July, 1917. The record shows that an account was opened in a local bank in the name of Secoy & Hindman, and from September 18, 1916, to July 2, 1917, over $21,000 was deposited to the account of Secoy & Hindman. This was practically all checked out by plaintiff; the checks being drawn in favor of the Caruthersville Liquor Company or to plaintiff. From April 2 to June 11, 1917, plaintiff drew checks on this account payable to the Caruthersville Liquor Company in the sum of $4,700, and $525 payable to himself. All the checks drawn by plaintiff were signed "Secoy & Hindman, by W. T. `Hindman." Plaintiff admitted that he sometimes paid the hired help in the saloon, and his bookkeeper testified that he kept the books both for the saloon and the...