Joplin Supply Company v. West

• Decision Date: 07 July 1910
• Citation: 130 S.W. 156,149 Mo.App. 78
• Parties: JOPLIN SUPPLY COMPANY, Respondent, v. W. H. WEST et al., Appellants
• Court: Missouri Court of Appeals

130 S.W. 156

149 Mo.App. 78

JOPLIN SUPPLY COMPANY, Respondent, v. W. H. WEST et al., Appellants

Court of Appeals of Missouri, Springfield

July 7, 1910

Appeal from Jasper Circuit Court.--Hon. David E. Blair, Judge.

Judgment affirmed.

McIndoe & Thurman for appellants.

(1) There can be no recovery where there is no actual partnership, unless there is a holding out of such partnership and the sale made in faith and belief of such partnership. Halo v. Mayer, 102 Mo. 93; Rimel v Hayes, 83 Mo. 201; Thompson v. Bank, 111 U.S 530, 28 L. Add. 507; Bissell v. Ward, 129 Mo. 439. (2) The mere participation in profits or the mere acquiring of an interest is not sufficient to constitute a partnership inter se. Bank of Osceola v. Outhwaite, 50 Mo.App 124; Kellogg v. McCleverty, 89 Mo.App. 154; Mackey v. Mott, 146 Mo. 231; Hazel v. Clark, 89 Mo.App. 78. (3) A chattel annexed to a chattel is not subject to a lien under the statutes of this State. Ottumwa v. Muir, 126 Mo.App. 590; Springfield Foundry & Machine Co. v. Cole, 130 Mo. 1; Ranson v. Shehan, 78 Mo. 668; Williams v. Porter, 51 Mo. 441; Wright v. Beards, 69 Mo. 548; Planing Mill Co. v. Christophal, 60 Mo.App. 111. (4) There must be a contract and sale of goods to the owner of the premises in order to have the benefit of a lien. Sibley v. Casey, 6 Mo. 164; Davis v. Mogsvell Co., 63 Mo.App. 447.

Haywood Scott for respondent.

(1) The agreements between Ayres and West, Allen and Livingston et al. for the operation of the mine thereunder were also sufficient to constitute a mining partnership from the time they agreed to operate the mine thereunder until the corporation began operating the property. Freeman v. Hemenway, 75 Mo.App. 616; Dale & Bennett v. Mining Co., 110 Mo.App. 317; Tamblyn v. Scott, 111 Mo.App. 46; Snyder v. Burnham, 77 Mo. 52; 22 Am. and Eng. Ency. Law, 226. (2) A partnership may as well be predicated of an agreement to share net profits, as of an agreement to share the profits and losses, and the same rule applies. Torbert v. Jeffrey, 161 Mo. 646; Corey v. Codwell, 86 Mich. 570; 49 N.W. 611; 63 L.R.A. 260. (3) Persons may become partners by actually carrying on a common business before incorporating. Simmons v. Ingram, 78 Mo.App. 603; Martin v. Fewell, 79 Mo.App. 401; Richardson v. Pitts, 71 Mo.App. 128; Furniture Co. v. Crawford, 127 Mo. 364; 27 Cyc. 755; 22 Am. and Eng. Ency. Law, 226. (4) The amendment of 1901 to section 4206, Revised Statutes 1899, extended the lien to buildings or other improvements erected or materials furnished on licensed lots or land with right to remove same. Laws of 1901, p. 206.

OPINION

GRAY, J.

The respondent instituted this suit in the circuit court of Jasper county, against H. A. Ayres, James D. Livingston, W. H. West, as partners, Buenos Ayres Mining Company, and the Clermont Land, Mining & Milling Company, to recover a judgment against the partners for the sum of $ 730.58, and asking that the sum be declared a lien against a certain concentrating plant, under the statutes relating to mechanics' liens.

The petition further alleges that the plaintiff, at the instance and request of the said partners, furnished an engine, materials and machinery for the construction of one complete concentrating plant owned by the said partners, and that all of said material and machinery were used in the construction of said plant, and all situated and located upon a certain tract of land held by said Ayres under a license from the Scranton Mining & Smelting Company, the owner of the real estate, for a period of ten years from the 16th day of December, 1908, and specifically describing one acre of said tract upon which it was claimed the concentrating plant was located.

The petition further alleges the sale and transfer of the plant and license to the Buenos Ayres Mining Company, and a like sale and transfer by that company to the defendant, Clermont Land, Mining & Milling Company, a corporation organized under the laws of the State of Kansas.

The Buenos Ayres Mining Company answered, and in addition to a general denial, alleged that none of the defendants ever owned any interest or estate in the premises described in plaintiff's petition, and that the only interest any of the defendants ever had was merely a license from the landowner, without the right of assignment, and the licensee had the privilege of removing said buildings and structure from the premises at the termination of said license.

The answer of this defendant further denied that plaintiff sold any goods or furnished any material to the defendant Ayres but averred the fact to be that if the plaintiff did sell any goods that entered into the buildings, the same were sold to the Ayres Brokerage Company, a corporation.

The defendants, Allen, West and Livingston, filed an answer duly verified, denying that they were partners of H. A. Ayres and further denying that any of the defendants ever owned a leasehold or any interest or estate in the premises described in plaintiff's petition; and that if H. A. Ayres ever did own any interest, the same was merely a license, and the licensee had the privilege of removing the buildings and structures from the premises. They also denied that plaintiff sold any goods to Ayres, but alleged the sale was to the Ayres Brokerage Company. The other defendants did not answer.

The case was tried before the court without a jury, resulting in a judgment in favor of the plaintiff and against the defendants, Allen, West and Livingston, in the sum of $ 727.65, and declaring the same to be a lien against the concentrating plant described in the petition. From the judgment, West, Livingston and Allen appealed.

There are but two points involved in this appeal. First, is the plaintiff entitled to a personal judgment against the appellants? Second, is the plaintiff entitled to a mechanics' lien?

About January 30, 1909, H. A. Ayres was the owner of a mine known as the "High Tariff Mine" and was operating the same under a written mining license from the owner of the land on which the mine was located. On that day he made a written proposal to the appellants and others, stating that he was the owner of the exclusive right to mine for ten years the premises described in the petition; that at said time there was already mined or fully exposed and disclosed therein minerals of the value of $ 30,000, and he offered to sell to the appellants and others, known as the St. Louis Syndicate, the right to acquire a half interest in his lease or license and the other property about the mine, upon a subscription by the Syndicate of the sum of $ 15,000, for the purpose of purchasing and erecting a mill upon the premises, for the purpose of mining and cleaning ore.

The proposition further contained a statement that a corporation was to be organized with a capital stock of $ 100,000, and the St. Louis Syndicate was to control fifty per cent thereof. The directors of the proposed corporation were to be three in number, Ayres to be one and the other two to be named by the Syndicate. The proposition was to be good for twenty days. The St. Louis Syndicate did not accept the proposition as made, but made a counter proposition which was signed by both parties, as follows:

"ST. LOUIS, 2-12-09.

"Our proposition is that Mr. Ayres shall sign an agreement not to draw any dividends from the mine, unless there is sufficient ore in sight, together with the equity in the mill, to equal the sum of $ 15,000. Should any question as to value of ore and mine come up, same shall be decided upon by an expert, decided on by both parties. In other words, the assets of the mine, as it now stands, up to 15 M, shall belong to the Syndicate, less the dividends drawn by the Syndicate.

"When the Syndicate has drawn 15 M in dividends from the mine, this agreement is void.

"It is understood that Mr. Ayres shall draw dividends as long as there is ore and equity in the mill, to the amount of $ 15,000. It is also understood that should the mine be abandoned, the Syndicate shall have the first right to the sales of its assets, up to $ 15,000 less the amount of dividends drawn by the Syndicate up to that time.

"The foregoing is agreed to by the parties above defined, and the title and interest of Herbert A. Ayres in the property mentioned is hereby assigned to the St. Louis Syndicate according to the terms of proposition of January 30, 1909, by said Ayres to said Syndicate; details to be completed as therein agreed.

"H. A. AYRES,

"ST. LOUIS SYNDICATE, by W. H. West."

The St. Louis Syndicate was composed of Judge Barclay, the three appellants and Claude H. Edwards. On February 13, 1909, there was executed by Ayres on a letterhead of the law firm of which Judge Barclay was a member, the following:

"ST. LOUIS, Mo., February 13, 1909.

"In consideration of funds advanced to me by the St. Louis Syndicate (amounting to ten thousand dollars) on account of purchase by said Syndicate of one-half interest in the mineral property and rights (mentioned in my proposal of January 30, 1909, to said Syndicate) further payment on Syndicate account are postponed until required (upon 30 days' notice) and the mining operations on said property from February 15, 1909, shall be continued and carried on for account of the joint ownership thereof by said Ayres and said Syndicate; and full accounts thereof shall be kept under my direction pending the further steps contemplated by the existing agreement between said parties.

"H. A. AYRES."

On the 27th day of March, 1909, Mr. Ayres and the appellants with others, organized a corporation known as the Buenos Ayres Mining Company. This corporation was organized in carrying out the proposal of Ayres made January 30th. On the 27th day of March, Mr....