Hooper v. Wineland

• Decision Date: 24 July 1939
• Docket Number: No. 5999.,5999.
• Citation: 131 S.W.2d 232
• Parties: HOOPER v. WINELAND et al.
• Court: Missouri Court of Appeals

131 S.W.2d 232

HOOPER v. WINELAND et al.

No. 5999.

Springfield Court of Appeals. Missouri.

July 24, 1939.

Rehearing Denied August 9, 1939.

Appeal from Circuit Court, Jasper County; Wilbur J. Owen, Judge.

"Not to be published in State Reports."

Proceeding to secure the appointment of a receiver and for an accounting by G. L. Hooper against J. D. Wineland and Nora G. Wineland. From a decree adjudging the defendant indebted to the plaintiff and ordering the sale of property jointly owned by the parties, the defendants appeal.

Motion to dismiss appeal overruled and judgment affirmed.

Kelsey Norman and Henry Warten, both of Joplin, for appellants.

McReynolds & Flanigan, of Carthage, for respondent.

SMITH, Judge.

This is a suit in equity brought by plaintiff, based upon a lengthy petition, in which the plaintiff alleged that on July 15, 1936, the defendants entered into a certain written lease with one E. A. Edwards as curator of the estates of James Luke, Jr., and David Chappelle Luke, both minors, as lessor of certain real estate described in the petition as well as in the lease attached to the petition. It is not necessary to set out the description here.

The petition alleges that on January 30, 1937, the written lease was modified. A copy of the modified lease was attached.

The petition alleged that shortly prior to February 13, 1937, the defendants, J. D. Wineland and Nora G. Wineland, proposed to the plaintiff that they enter into a joint adventure or copartnership with the plaintiff, in the ownership of the lease above mentioned, the plaintiff to own one half and the defendants to own the other half thereof, and that as such adventurers or copartners they should proceed to complete the construction of a theatre building on the real estate described in the lease and in the petition, and that when completed the copartners should operate a moving picture theatre therein, and that in the joint adventure or copartnership, the plaintiff should be obliged to contribute one half of the cost of construction and operation and the defendants should contribute the other half thereof, and that in case of losses the same should fall upon the parties in the same proportion. It is alleged that on the 13th day of February, 1937, the parties entered into such a written agreement. It is alleged that under that agreement the plaintiff was to pay to the defendants the sum of $4000 in cash and the further sum of $2000 to be evidenced by plaintiff's promissory note payable to defendants and to be due on or before two years from the date thereof. It is alleged that thereafter, on February 16, 1937, the parties entered into a supplemental agreement modifying and altering the terms of the contract dated February 13, 1937, and providing that the plaintiff, G. L. Hooper, should raise at once the sum of $6000 and out of the same should pay to J. D. Wineland the sum of $1000, and the balance of $5000 to be deposited by said Hooper at the Webb City Bank, to be used exclusively for the purpose of erecting a theatre building upon the premises leased in Carthage. The petition alleges that the plaintiff did raise the full amount of the $6000, and out of the same did pay to J. D. Wineland the sum of $1000 and did deposit the $5000 at Webb City Bank to the credit of Mystic Theatres, that being the name agreed upon by the parties for the joint adventure or copartnership, and that the acts of the plaintiff in raising the said sum of $6000 constituted the consideration for the execution of the supplementary agreement of February 16, 1937. In order to show in full the issues in this matter, we quote the remaining portion of the petition as follows:

"Plaintiff states that prior to February 16, 1937, no construction work had been done upon said proposed theatre building nor had any materials been purchased or contracted for, except a quantity of lumber and brick which the defendants had caused to be unloaded at the site of said proposed theatre, nor had any steps whatever been taken to comply with the terms of the said lease of July 15, 1936; but that shortly after plaintiff made said deposit of $5,000.00 at Webb City Bank to the credit of Mystic Theatres the plaintiff and the defendants began the actual construction of the theatre building on the tract hereinbefore described and that in the progress of said work of construction the defendant J. D. Wineland checked out and used all of the $5,000.00 deposit so made by plaintiff as aforesaid. That when said $5,000.00 fund was exhausted said theatre building was not completed and was wholly unequipped; that under the terms and conditions of the original contract of joint adventure or partnership dated February 13, 1937, as modified by said supplementary agreement of February 16, 1937, further moneys required for the erection of said theatre building and the equipment of the same, were to be raised and contributed one-half by plaintiff and one-half by defendants; that for the purpose of carrying forward the construction of said theatre building the plaintiff and the defendant J. D. Wineland joined in the execution of a note for $5,000.00 in favor of Bank of Carthage, Carthage, Missouri, for the purpose of obtaining additional cash for investment in the construction of said theatre building; that the defendant Nora G. Wineland, by instrument of writing, guaranteed the payment of said note.

"Plaintiff states that the parties received of Bank of Carthage on said note the full sum of $5,000.00 and that they deposited same at Bank of Carthage to the credit of Mystic Theatres, Inc., and that the whole of said deposit was paid out by the parties for labor and materials used in the construction of said theatre building.

"Plaintiff states that the Bank of Carthage note aforesaid was due July 12, 1937; that the defendant J. D. Wineland as maker and the defendant Nora G. Wineland as guarantor refused to pay any part of the same although the debt was one half theirs and one half plaintiff's under the terms of the contract of joint adventure or partnership between the plaintiff and the defendants as modified by said supplementary agreement of February 16, 1937, and that at the maturity of said note the plaintiff, being a joint maker thereon, was obliged to and did take up and discharge the same so that defendants are justly indebted to plaintiff for one half of the face of said note, namely, $2,500.00, which, although demanded, has not been paid.

"Plaintiff further states that the parties hereto contracted with National Theatres Equipment Company for the purchase of certain chairs, carpets and projection machines for installation in said theatre building at a price in excess of $8,000.00 and that the parties hereto made a down payment out of their bank account at Webb City Bank amounting to approximately $800.00 to $1,000.00. That thereafter the chairs, carpets and projection equipment were received at Carthage, Missouri, and there held by the carrier under bill of lading with draft for $1,001.65 attached for collection through Central National Bank of Carthage, Missouri. That at said time the joint adventure or partnership between the parties was out of funds; that plaintiff demanded of defendants that they contribute one half of the amount due on said draft which the defendants failed, neglected and refused to do and that thereupon the plaintiff, out of his own funds, paid to National Theatres Equipment Company said sum of $1,001.65 for the use of the joint adventure or partnership so that defendants on this account are justly indebted to plaintiff in the sum of $500.82 which, although demanded, has not been paid to Plaintiff.

"Plaintiff states that said joint adventure or copartnership is the owner of said chairs, carpets and projection equipment, subject to a chattel mortgage thereon in favor of the seller; that unless a receiver be appointed herein immediately, the chattel mortgagee will take possession of all of said property and equipment and the same will be wholly lost to plaintiff and the defendants.

"Plaintiff states that thereafter, the funds of said joint adventure or copartnership having been exhausted, the plaintiff, at the instance and request of the defendants, deposited to said Mystic Theatres account at Webb City Bank, the sum of $700.00 for the use of said joint adventure or partnership which deposit was used by the joint adventure or partnership in the construction of said theatre building. That thereby the defendants became justly indebted to plaintiff for one half of said sum so advanced by plaintiff, namely, $350.00, which although demanded, has not been paid to plaintiff.

"Plaintiff further states that prior to February 13, 1937, and as a means to induce plaintiff to enter into said joint adventure or copartnership agreement of February 13, 1937, the defendants represented to plaintiff that all brick and lumber then on said theatre lot at Carthage, Missouri, was fully paid for and was owned by the defendants and that plaintiff, upon entering into said joint adventure or copartnership agreement, would become the owner of the undivided one half thereof; that in truth and in fact said representations were not true. That said lumber and brick was not fully paid for and was not owned by the defendants and that thereafter in order to acquire the ownership of said lumber, funds of the joint adventure or partnership at Webb City Bank to the extent of $98.50 were checked out of said account and paid to George W. Miller, the true owner of said lumber, and that by reason thereof the defendants are justly indebted to plaintiff for one half of the sum paid to said Miller, namely, $49.25 payment of which, although demanded, has not been made.

"Plaintiff further states that with reference to said brick the defendants represented to plaintiff that there were sixty to sixty-five thousand second hand bricks on said theatre lot owned by the defendants, an undivided one half of which...