McCauley's Adm'r v. Cleveland

• Decision Date: 31 July 1855
• Citation: 21 Mo. 438
• Parties: MCCAULEY'S ADMINISTRATOR, Defendant in Error, v. CLEVELAND, Plaintiff in Error.
• Court: Missouri Supreme Court

21 Mo. 438

MCCAULEY'S ADMINISTRATOR, Defendant in Error,

v.CLEVELAND, Plaintiff in Error.

Supreme Court of Missouri.

July Term, 1855.

1. The receipt of a share of the profits of a concern does not necessarily create a partnership in the stock, as between the parties.

Error to McDonald Circuit Court.

The case is stated in the opinion of the court.

Edwards, for plaintiff in error.

No brief or appearance for defendant in error.

RYLAND, Judge, delivered the opinion of the court.

James McCauley, in his lifetime, commenced his civil action in the Circuit Court of McDonald county, against Jasper Cleveland. McCauley, in his petition, stated that on the 1st day of February, 1850, he bought of Cleveland, the defendant, one half of a blacksmith shop and a set of tools, and entered into partnership with the defendant in the blacksmith business. He states that they were both to share equally in the profits of said business: he states that they worked together in said shop for some three months or more, in which time divers accounts were made against divers persons for various amounts. He states the names of several persons, and the amount of the accounts due by them. He charges that defendant had collected these accounts, or a greater part of them, and has failed to account to the plaintiff for the same. He also charges that defendant sold the said blacksmith's shop and tools for some four hundred dollars, for which he (defendant) has failed to account with plaintiff. He states that he is still indebted to the defendant a small amount on the original purchase of the shop and tools. He asks for judgment for the amount found to be due him, after deducting such credits as the defendant may be entitled to, which plaintiff states he believes to be about forty-four dollars, leaving a balance of two hundred and twelve dollars, for which he asks judgment.

The defendant answered this petition by stating that the plaintiff, after he, the defendant, had purchased a blacksmith shop and blacksmith tools, desired to enter into partnership with the defendant, and it was agreed by defendant that if he, the plaintiff, would pay one half of the cost of said shop and tools, he and plaintiff should be joint owners thereof, and carry on the business in co-partnership with defendant.

Defendant says plaintiff afterwards came into the shop and worked with him about a month or six weeks, and left, and did not return. Defendant also states that plaintiff, during the time he worked with defendant, as aforesaid, received his full share of all the proceeds and profits of said concern, but never did pay the one half of the cost of said shop and tools, nor any part thereof, and had no interest therein. Defendant did sell said shop and tools and kept the proceeds, as he had a right to do. Defendant denies that he owes plaintiff anything, but charges that he (plaintiff) owes defendant for the use of said shop and tools while he worked in said shop, the sum of twenty-five dollars, for which he asks judgment.

The plaintiff moved the court to strike out this answer. The record does not show what became of this motion. There was a trial by jury, and a verdict for the plaintiff. Defendant moved to set aside this verdict: his motion being overruled, he excepted and filed his bill of exceptions. The death of the plaintiff, McCauley, is afterwards suggested on the record, and Moses Allen, as administrator of the said McCauley, is admitted, by consent of the defendant, to prosecute the action as party plaintiff.

The bill of exceptions...