Mack v. Wurmser

• Decision Date: 16 June 1896
• Citation: 36 S.W. 221,135 Mo. 58
• Parties: Mack v. Wurmser, Appellant
• Court: Missouri Supreme Court

36 S.W. 221

135 Mo. 58

Mack v. Wurmser, Appellant

Supreme Court of Missouri, Second Division

June 16, 1896

Appeal from Jackson Circuit Court. -- Hon. John W. Henry, Judge.

Reversed in part; affirmed in part.

R. H Field and Leon Block for appellant.

(1) The decree is not supported by any evidence and is against the evidence. Plaintiff's evidence repeated and reiterated was that he had purchased a one eighth partnership; that he had bought one eighth of the real estate and all the assets. Defendant's evidence is that plaintiff had for this $ 5,000 purchased one eighth of the profits and this $ 4,000 guaranty. The competent evidence all substantiated the claim of the defendant. The court by this decree overthrew all this and made a contract for the parties that neither of them ever intended to make. The court had no such power. Oliver v Ins. Co., 2 Curtis (U.S.), 298; Ladwig v Haase, 54 Wis. 311; Hunt v. Rousmanaire, 1 Peters (U.S.), 114; Norton v. Bohart, 105 Mo. 616. By virtue of the contract the $ 5,000 "contributed" by plaintiff became defendant's. Evans v. Hanson, 42 Ill. 234; Ball v. Farley, 81 Ala. 258. (2) Mack, not having paid the $ 5,000, or (what amounts to the sane thing) not having paid the note given therefor, and which, as part of the same transaction, he had agreed to pay, can not recover. Corby v. Bean, 44 Mo. 379; 1 Pomeroy's Equity Jurisprudence, sec. 387, p. 423, and sec. 388, p. 424; Kline v. Vogel, 90 Mo. 239; Deichman v. Deichman, 49 Mo. 107; Phillips v. Phillips, 50 Mo. 603; Mastin v. Halley, 61 Mo. 196. As he can not prove performance of the contract on his part, he could not recover even at law. Billups v. Daggs, 38 Mo.App. 367. (3) This being a suit in equity, is of course subject to review by the supreme court, is substantially triable de novo by this court, and this court is not bound by the finding of the lower court. Blount v. Spratt, 113 Mo. 48; Knapp v. Knapp, 29 S.W. 885; Likins v. Likins, 122 Mo. 279; Lawless v. Lawless, 47 Mo.App. 523; King v. Barnes, 109 N.Y. 267; 3 Pomeroy's Equity, sec. 1421, note on page 473. See, also, Nelson v. Betts, 21 Mo.App. 219.

Henry Wollman, James S. Bottsford, and Alexander New for respondent.

(1) "Where the writing does not exhibit on its face, or purport to be, a complete expression of the entire contract between the parties, parol evidence is admissible to explain and supply its omissions. Rollins v. Claybrook, 22 Mo. 407; Moss v. Green, 41 Mo. 389; Briggs v. Munchon, 56 Mo. 467; 1 Greenl. Ev., sec. 284a; Ellis v. Bray, 79 Mo. 227." Norton v. Bohart, 105 Mo. 633. (2) The word "contribute" which is used in the instrument, does not show whether Mack contributed his $ 5,000 as a loan, or to a partnership. It certainly was not used in the sense of making a gift to Wurmser. (3) In this case the writing is ambiguous, because it does not show whether Mack contributed his money as a partner or as a lender, and consequently parol testimony was properly admissible to show the circumstances under which he contributed it. Besides this, the defendant did not object to any parol testimony going in. Brolaski v. Aal, 55 Mo.App. 197; Ziegler v. Fallon, 28 Mo.App. 299. (4) Parol testimony showing the previous conversation was let in, not for the purpose of making a new contract, but for the purpose of showing what was omitted from the writing, what the ambiguities meant, and by the surrounding circumstances what the parties intended at the time they entered into the transaction. Nichols v. Boswell, 103 Mo. 161. (5) The decree for Mack was equitable and just and appellant has no just ground of complaint.

Gantt, P. J. Sherwood and Burgess, JJ., concur.

OPINION

Gantt, P. J.

The original petition in this case was a suit to dissolve a partnership between plaintiff and defendant in an extensive furniture stock and business in Kansas City, Missouri, and prayed for an accounting and the appointment of a receiver. The partnership was denied by the defendant in his answer.

The claim that there was a partnership and the right of recovery in this action grows out of the following instrument:

"Kansas City, Mo., January 10, 1888.

"It is hereby agreed between the undersigned that in consideration of Julius S. Mack contributing $ 5,000 to the firm of A. C. Wurmser & Co. he is to receive one eighth of the annual profits of said firm and said firm furthermore guarantee that his share shall amount to the sum of $ 4,000 annually.

"A. C. Wurmser & Co.

"Julius S. Mack."

It was averred in the petition that at the end of each year defendant notified plaintiff as to the amount of plaintiff's one eighth of the profits and plaintiff drew the same, as follows: For the year 1888, $ 4,651; for the year 1889, $ 4,000; for the year 1890, $ 4,000; for the year 1891, $ 2,500.

On January 1, 1892, plaintiff voluntarily quit the service of defendant.

Plaintiff construed the contract as constituting him a partner, whereas defendant construed it simply as a contract for a share of the profits. The circuit court found there was no partnership and gave judgment accordingly. From that judgment plaintiff did not appeal.

Upon the development of the facts, however, the plaintiff, upon an intimation from the circuit court, added a new count to his petition in substance as follows: That on January 1, 1888, Mack loaned Wurmser, who was carrying on a furniture business in Kansas City, the sum of $ 5,000, and it was agreed between Mack and Wurmser that, as annual compensation for the use of the same and for the services of Mack in and about the business of Wurmser & Company, Mack should annually receive from Wurmser one eighth of the profits of said business and which Wurmser agreed should in no year be less than $ 4,000 and guaranteed that in each year the same should be at least $ 4,000; that Mack performed the agreement on his part and performed such services as were required during 1888, 1889, 1890, and 1891; that on January 1, 1892, Mack quit the service of Wurmser; that Mack had received the amounts hereinbefore set forth, but there were a large amount of profits not accounted for and although often demanded by Mack, Wurmser refuses to account therefor; that Mack has demanded return of the $ 5,000 so loaned to Wurmser, but Wurmser refuses to repay it, and concluding with a prayer requiring Wurmser to account, and for judgment for the $ 5,000, with interest from January 1, 1892.

In his reply Wurmser denied the loan altogether. Averred the $ 5,000 was part of the consideration for purchase of part of the profits. The reply also set up that Wurmser, in order to enable Mack to get the $ 5,000 to purchase said interest in the profits, indorsed Mack's note for that sum to Mack's intended father-in-law; that Mack had only paid $ 2,000 on said note and Wurmser was still liable thereon for $ 3,000.

Upon the evidence the court rendered the following judgment and finding:

The court found that Mack and Wurmser were not partners as charged in the first count of the petition, but that Mack advanced said $ 5,000 to Wurmser by way of a loan for use in the said business, and that as compensation for the use of said $ 5,000 so advanced and loaned to Wurmser by Mack, and by way of compensation to Mack for his services as head salesman and general manager in charge of the sales department, that Wurmser was to pay annually to Mack one eighth of the annual profits of said business. And the court found that Wurmser was indebted to Mack for said $ 5,000, and that Wurmser was also indebted to Mack in the sum of $ 1,650 on account of profits not accounted for or paid over by Wurmser to Mack. That portion of the judgment which was for Mack reads as follows:

"The court finds the issues for the plaintiff on the second count of the petition; and the court finds the issue for the defendant on the first count of the petition; that defendant has failed to account to plaintiff for plaintiff's one eighth of the profits of A. C. Wurmser & Company for each of the years of 1888 and 1889, which was the duty of defendant to do, and defendant is indebted to plaintiff for such profits not accounted for or paid to plaintiff; and that plaintiff is entitled to a decree against defendant therefor. The court further finds that one eighth of the profits of the firm of A. C. Wurmser & Company, mentioned in the pleadings, was paid by defendant to plaintiff as compensation for plaintiff's services as an employee of said firm, and for the use by the defendant of the five thousand dollars ($ 5,000) mentioned in the petition and in the contract dated January 10, 1888, set out therein, which sum of five thousand dollars ($ 5,000) the court finds was advanced by plaintiff to defendant by way of a loan, to be repaid to plaintiff by defendant, and that defendant is indebted to plaintiff in said last amount thereof, and that plaintiff is entitled to a further decree against defendant therefor. The court further finds that plaintiff ought to recover from defendant the sum of six thousand, six hundred and fifty dollars ($ 6,650), the amount owing by the defendant to plaintiff for said loan and profits not accounted for or paid over by defendant to plaintiff. It is further considered, adjudged, and decreed by the court that plaintiff recover from defendant the sum of $ 6,650, with interest from this date at six per cent per annum, together with the costs of this suit, and that execution issue therefor."

Wurmser appealed from this judgment on second count.

I. The learned coun...