McNealy v. Bartlett

• Decision Date: 04 February 1907
• Citation: 123 Mo. App. 58,99 S.W. 767
• Parties: McNEALY v. BARTLETT.
• Court: Missouri Court of Appeals

99 S.W. 767

123 Mo. App. 58

McNEALY v. BARTLETT.

Kansas City Court of Appeals. Missouri.

February 4, 1907.

1. CONTRACTS — VALIDITY OF ASSENT — MISREPRESENTATION.

A false representation does not affect a contract where the party to whom it was made was not influenced to act by it.

2. SAME — SUBJECT-MATTER — QUESTION FOR JURY.

The identity of the subject-matter of a contract is a question of fact for the jury.

3. PARTNERSHIP—CREATION AND REQUISITES —COMMUNITY OF INTEREST IN PROFITS AND LOSSES—MUTUAL AGENCY.

Where two parties agree to join in the purchase and sale of a carload of hogs, and share equally in the gain or loss of the transaction, a partnership is formed, and the act of one party in the purchase and sale of the hogs was that of a partner.

4. FRAUDS, STATUTE OF — AGREEMENT TO FORM PARTNERSHIP.

Where an oral agreement to form a partnership is to be fully performed within one year, it is not within the statute of frauds.

5. SAME—STATUTORY PROVISIONS.

An agreement between two parties to join in the purchase and sale of a carload of hogs, and share equally in the gain or loss of the transaction, is an agreement for a partnership, and not a sale of goods, within Rev. St. 1899, § 3419, providing that no contract for sale of goods of the price of $30 or upwards, shall be binding unless the buyer accepts a part of the goods, or gives something in part payment, or unless some memorandum in writing be made, etc.

6. PARTNERSHIP—ACTIONS BETWEEN PARTNERS —FORM OF REMEDY.

One partner may sue another in an action at law, where but one matter growing out of the partnership business remains unadjusted.

Error to Circuit Court, Sullivan County; Jno. P. Butler, Judge.

Action by Edward S. McNealy against Hugh M. Bartlett. Judgment for plaintiff, and defendant appeals. Affirmed.

See 95 S. W. 273.

Wilson & Clapp, for plaintiff in error. Childers Bros. and Jno. W. Bingham, for defendant in error.

JOHNSON, J.

Plaintiff alleges that he and defendant, as partners, purchased and sold a carload of hogs, on which a loss of $136.64 was incurred and paid by plaintiff, and sues at law to recover one-half of the loss. He prevailed in the trial court and defendant appealed.

The partnership agreement was not in writing, and its existence must be found, if at all, from the following facts adduced by plaintiff: The parties live in Sullivan county, and, at least, on one other occasion had bought a carload of hogs and shipped them to the stock market at Kansas city on an agreement to snare equally in the gain or loss. The transaction in question originated in a conversation over the telephone, in which plaintiff said, in substance, that he had bought a carload of hogs from his brother at five cents per pound for shipment to market, and, after describing them, asked defendant "if he was in," to which defendant answered in the affirmative. Afterwards, and before delivery of the property to plaintiff, he and defendant talked about the purchase, and the latter suggested that they request the vendor to hold the hogs a time longer owing to the bad weather, but plaintiff replied that "the time was up, and they had to go." The suggestion was not further pressed by defendant, and plaintiff received and paid for the hogs, shipped them to market where they were sold, resulting in the loss stated. When the agreement was made, plaintiff's brother did not own the property, but had contracts with the owners thereof for its purchase. Defendant's version of the conversation over the telephone is that plaintiff told him he had bought from his brother a carload of hogs, which the latter had raised, and, after describing the animals, and stating the price at which he had bought them, asked defendant if he "wanted to stay," to which defendant answered in effect that he did. From the testimony of each party, it is evident they understood plaintiff's inquiry to be a proposal that defendant should become an equal partner with him in the venture; but defen...