Howard v. Scott

• Decision Date: 02 March 1903
• Citation: 72 S.W. 709,98 Mo.App. 509
• Parties: F. P. HOWARD, Respondent, v. ADAM SCOTT, Appellant
• Court: Kansas Court of Appeals

72 S.W. 709

98 Mo.App. 509

F. P. HOWARD, Respondent, v. ADAM SCOTT, Appellant

Court of Appeals of Missouri, Kansas City

March 2, 1903

Appeal from Jasper Circuit Court.--Hon. Hugh Dabbs, Judge.

AFFIRMED.

STATEMENT BY BROADDUS, J.

On October the 25, 1897, the plaintiff and defendant entered into the following agreement, viz.:

"Joplin Mo., October 25, 1897.

"This agreement is hereby entered into, by and between Adam Scott and F. P. Howard, that any amount or amounts of money, with interest, that may be advanced from time to time by F. P Howard in excess of the amount or amounts by Adam Scott, in any kind of business in which they may be engaged, shall be repaid to F. P. Howard from the first net receipts or profits from any of the kinds of business in which they may be engaged together; then profits shall belong to each in proportion to his share in the business."

The evidence disclosed that the parties entered into the mining business and that while so engaged plaintiff paid into the business $ 2,816.38 more than the defendant, and that the same was not satisfied out of any profits realized from their joint enterprise.

On October 14, 1898, the plaintiff with one Maris, who had an interest with him in the business, and the defendant entered into the following contract, viz.:

"Joplin Missouri, October 14, 1898.

"This memorandum of agreement, witnesseth: that for and in consideration of one dollar in hand paid, the receipt whereof is hereby acknowledged, and the further stipulations and agreements hereinafter contained and agreed to by F. P Howard and J. M. Maris, parties of the first part, and Adam Scott, or his assigns, party of the second part, said parties of the first part hereby agree to sell and transfer a five-eighths interest in mining lots Nos. 20, 21, 22 and 23 at Oronogo, Missouri, as shown by plat and record of said lots in the office of the Granby Mining Company, together with plant and all fixtures and improvements situated thereon, being known as the 'Nugget Mine,' for and in consideration of the further payment to them by said Scott or assigns, the sum of ten thousand dollars, which amount being the amount of money advanced and put into all the various enterprises and mining interests, in which the said parties hereto have been interested in, in the mining business in Jasper county, Missouri, under the firm name of F. P. Howard & Company, and this conveyance is construed to cover all fixtures, properties, credits, etc., of the said firm of parties hereto, and said Scott, or assigns, are to assume all liabilities of said firm, a schedule of which is hereto attached, and it is agreed by said parties hereto, that whatever receipts above expenditures during the pendency of this agreement are to be applied in payment of said liabilities. The above consideration to be paid as follows, viz.: all cash upon receipt of assignment papers, and it is agreed by parties of the first part that said Scott, or associates, shall pave thirty days to make and accept under the terms of this agreement, and a failure to do so will render this contract null and void.

"In witness where of we have hereunto subscribed our names on the date first above mentioned. Adam Scott. F. P. Howard 3-8. J. M. Maris 2-8. Pr. F. P. Howard."

On November 11, 1898, plaintiff and said Maris executed the following writing, viz.:

"Joplin, Missouri, Nov. 11, 1898.

"We hereby grant an extension of time on a certain contract made and entered into by us with Adam Scott, bearing date of October 14, 1898, for a further period of twenty days, upon the same terms, conditions, etc., as set out in said contract. F. P. Howard. John M. Maris."

On the 23d day of November, 1898, the parties entered into the following contract, viz.:

"This agreement made this 23d day of November, A. D. 1898, between F. P. Howard and J. M. Maris, of Decatur, Illinois, parties of the first part, and Adam Scott and . . . of Joplin Missouri, parties of the second part, witnesseth: That the said F. P. Howard and J. M. Maris, in consideration of the agreement hereinafter contained, to be performed by Adam Scott and . . . ., agree to sell and deliver to the said Adam Scott and . . . a five eighths interest in mining lots numbers twenty, twenty-one, twenty-two and twenty-three at Oronogo, Missouri, as shown by the plat and record of said lots in the office of the Granby Mining Company, together with plant and all fixtures and improvements situated thereon, said plant being known as the Nugget Mine. And the said Adam Scott and . . . in consideration thereof, agree to pay to the said F. P. Howard and J. M. Maris the sum of $ 10,000 in the manner following: two thousand dollars cash upon the delivery of the property and the balance, eight thousand dollars, to be made payable in eight equal installments of one thousand dollars each, the first installment to be paid January 1, 1899, and the following installments to be paid on the first day of each succeeding month thereafter until all the installments are paid; the said sum of eight thousand dollars to be secured by judgment notes and a chattel mortgage on the property sold and transferred by the parties of the first part. Said notes to draw seven per cent interest from date until paid; and in case of failure of the said parties...