Jones v. Stever

• Decision Date: 03 April 1911
• Citation: 154 Mo. App. 640,136 S.W. 16
• Parties: JONES v. STEVER.
• Court: Missouri Court of Appeals

136 S.W. 16

154 Mo. App. 640

JONES v. STEVER.

Springfield Court of Appeals. Missouri.

April 3, 1911.

1. PARTNERSHIP (§ 53) — EXISTENCE — EVIDENCE—SUFFICIENCY.

Evidence held to sustain a finding of a partnership enterprise to buy and resell mules, under agreement for reimbursement of plaintiff for feeding and caring for them.

2. PARTNERSHIP (§ 1)—CREATION—CONTRACT.

A partnership relation is contractual.

3. PARTNERSHIP (§ 5)—PROVISION FOR LOSSES —NECESSITY.

A partnership contract need not expressly provide for a sharing of losses.

4. PARTNERSHIP (§ 5)—EXISTENCE—SHARING PROFITS.

A partnership existed if it was agreed that defendant should furnish money to buy mules to be kept for resale by plaintiff, who was to care for them, and that the profits be divided, after deducting outlay by the parties.

5. APPEAL AND ERROR (§ 1011) — REVIEW — FINDINGS—CONCLUSIVENESS.

A judgment based on conflicting testimony will not be disturbed as being against the evidence.

Appeal from Circuit Court, Greene County; Alfred Page, Judge.

Action by J. Y. Jones against J. B. Stever. Judgment for plaintiff, and defendant appeals. Affirmed.

Hamlin & Seawell, for appellant. Val. Mason and George Pepperdine, for respondent.

GRAY, J.

The plaintiff filed his petition in the circuit court of Greene county for an accounting and to recover of and from the defendant the amount found to be due plaintiff on such accounting.

The plaintiff claims that in October, 1909, he was engaged in buying, selling, feeding, and dealing in stock at Springfield; that he entered into a contract with the defendant, whereby it was agreed that certain mules should be purchased by the parties, and that the defendant should furnish, for that purpose, the money necessary, and should also keep an account of his actual expenses in making the purchases; that the mules should be kept at plaintiff's stable and fed and cared for by him, and disposed of by the parties; that after the sale the proceeds arising therefrom should be used to reimburse defendant for the moneys paid for the mules, and the plaintiff for feeding and taking care of the same; that the expenses of purchasing and taking care of the property were to be shared by the parties in equal proportion, and after the payment of all of such items the profits arising, if any, were to be divided between the parties.

The defendant contends that he was to purchase the mules, and that plaintiff was to feed and care for them, and when they were sold defendant was to be repaid for the purchase price, and any sum remaining was to be divided equally between the parties. In other words, the defendant contends that plaintiff was not to be reimbursed for feeding and taking care of the animals.

There were purchased 184 mules, and the total outlay of defendant therefor was in round numbers, $30,000. The plaintiff's feed bill was about $1,060. The mules were sold, but did not bring enough to reimburse the parties for their expenditures, but there was a net loss of $357.45.

The case was tried on the 17th day of May, 1910, and the court made a finding of facts to the effect that the defendant was to purchase the mules and deliver them to plaintiff's barn at Springfield, and to furnish the purchase price thereof; that plaintiff was to keep the mules in his barn and feed and care for them until sold; upon the sale the defendant was to receive back all money expended for the mules, and all expenses incurred by him in their purchase, and that plaintiff was to receive the expenses of keeping the mules in his barn, and the net profits resulting from the transaction were then to be divided equally between the parties. The court further found that nothing was said in the agreement as to the sharing of any loss which might result from the enterprise; that the parties were partners in the transaction, and the losses should be borne equally; that 30 cents a day per head was a reasonable price for feeding and caring for the mules, and rendered judgment in favor of the plaintiff for $400.67.

The only question to be determined in this is, Is the finding of facts supported by the evidence? The plaintiff testified in his own behalf and the finding of facts by the court are in harmony with his testimony. In addition to his own testimony, he offered the testimony of two witnesses who testified they had a conversation with the defendant about one of the mules he had sold; that the defendant said he had sold the mule for $35 more than he had paid for it, and asked one of them to figure what the mule had cost him while in the barn, and basing the cost at 30 cents a day. The defendant testified that he was to furnish the money and buy the mules, and plaintiff was to put in his time and feed against the use of the money, and whatever the mules sold for above the amounts expended by defendant was to be divided equally between the parties. The trial court found against the defendant on this issue.

The appellant claims that the evidence does not support the plaintiff's contention as to the terms of the contract. And further claims that his contention is supported by the following testimony given by plaintiff while on the stand in his own behalf: "He was to furnish the mules and put them in the barn, and I was to furnish the feed and furnish the work that I could do, and sell the mules as much as I could; and when we got through we were to divide the profits." Appellant claims...