Horine v. Clear

• Citation: 2 S.W.2d 154
• Decision Date: 20 January 1928
• Docket Number: No. 4248.,4248.
• Parties: HORINE v. CLEAR.
• Court: Court of Appeal of Missouri (US)

2 S.W.2d 154

HORINE v. CLEAR.

No. 4248.

Springfield Court of Appeals. Missouri.

January 20, 1928.

Appeal from Circuit Court, Jasper County; Grant Emerson, Judge.

Action by R. W. Horine against Fletcher Clear and another. From a judgment for the named defendant, plaintiff appeals. Affirmed.

McReynolds & Blair and A. J. Thornberry, all of Joplin, for appellant.

John J. Wolfe, of Joplin, for respondent.

BAILEY, J.

Suit was instituted August 9, 1926, against defendant Fletcher Clear and W. N. Squires, alleged to be copartners engaged in the mining business under the name of the S. & M. Mining Company, to recover a balance due on a written contract by which plaintiff had advanced to defendants certain sums in payment for ore to be delivered. Defendant Fletcher Clear filed a separate answer and a verified denial that he was a partner with Squires in said mining company. The cause was tried before the court and judgment was for defendant. Plaintiff has appealed.

The only question before this court relates to the issue of partnership which the trial court, by its judgment, decided did not exist. The partnership being denied by defendant under oath, the burden was on plaintiff to establish that fact. Section 1415, R. S. 1919. Bevan v. Hill (Mo. App.) 284 S. W. 174.

The facts in evidence upon which plaintiff relies to establish a partnership are substantially as follows: In August, 1924, defendant Fletcher Clear, Roy Peacher, and Charles R. Roundtree were doing business as a copartnership under the name of the Clear-Peacher Mining Company. This company held a mining lease on a certain 40 acres in Jasper county, expiring in 1932. On the 28th day of August, 1924, the above-mentioned parties entered into a contract with Wilbur N. Squires, by the terms of which he had the right to sink a shaft on said land and was given the option, upon its completion, to take over the unexpired lease of said partners at a certain price or to take from them a sublease. This contract contained a reservation that, in the event Squires should elect to avail himself of the option to take a sublease, "then, and in such event, the said Fletcher Clear, in executing such sublease, shall have the right to reserve unto himself, his heirs and assigns, an undivided one-eighth in and to the said mining lease property and premises conveyed by any such sublease to said second party as hereinbefore provided for, which said one-eighth interest therein so reserved by the said Fletcher Clear shall in any case be held by him free from all assessments and expenses of any character whatsoever except necessary operating expenses."

It also appears that there was certain mining machinery, equipment, and buildings on this land owned by the Clear-Peacher Mining Company which Squires had the right to use. Thereafter Squires elected to take a sublease of the mining land and on July 1, 1925, Fletcher Clear et al. executed a mining lease to the said Wilbur N. Squires, trustee, for a term ending in January, 1932. The portion of this lease material to the issues here is as follows:

"The above-named Fletcher Clear hereby retains and reserves to himself the undivided one-eighth in and to the said above-described mining land and lease."

The contract under which plaintiff made the advancements of money sued on was entered into May 23, 1925, between plaintiff and the S. & M. Mining Company and W. N. Squires, manager, and shows the money was advanced for two or three cars of ore. No question is raised as to this ore being mined from the leasehold land heretofore referred to and the amount due is not in issue. W. N. Squires testified that he organized the S. & M. Mining Company and under that name he operated the mine on this lease. When he started operating he was associated with a certain Moore, of Ohio, who, according to Squires, "dropped out right on the start, and I operated under that name for practically a year, until we had a cave in and shut down." He further testified that:

"In the usual order of mining operations I secured some advancements from R. W. Horine to pay expenses in running the mine. Exhibit A is the contract covering the advancement that I signed. Mr. Horine paid me the money set forth in that contract. The last $1,000 was on Saturday night before the accident on Tuesday."

On cross-examination he testified as follows:

"At the time I was operating out there as the S. & M. Mining Company I was operating under the instrument marked Exhibit C, dated August 28, 1924, under which Mr. Clear stipulated in the lease attached thereto that he was retaining an undivided one-eighth in the lease. I was operating the property under the terms of this agreement, Exhibit C. We were producing ore, milling ore, and selling ore. Mr. Clear had nothing whatever to do with the property in any way, shape, or form, or had any say-so in it."

Plaintiff testified that he advanced the money shown by the contracts to Mr. Squires; that the last $1,000 was advanced shortly before the mine closed down and that he went out "to see what Squires had"; that Fletcher Clear (the defendant) was there; that he looked at the ore; and that:

"I talked to Mr. Clear and asked him about the mine and drill, how he was getting along, and in the conversation told him Squires wanted to borrow another thousand dollars. He said that was perfectly all right, the mine was good and one of the best in the country. He says: `This has always been counted one of the best mines in the country and no danger in loaning him money.' He says: `I hold an eighth interest in this myself and would sell it to you.' I don't know exactly the words passed from that, but I told him I would see him; I never bought any mines and didn't believe I wanted to buy any. He said he wouldn't care to sell it to-day, and I told him I didn't believe I wanted to mine any."

On cross-examination he stated that:

"I had been advancing money to Squires for quite a while. I couldn't tell you how much. I would have to figure it up. The last...