Meinhart v. Draper

• Decision Date: 18 July 1908
• Citation: 133 Mo. App. 50,112 S.W. 709
• Parties: MEINHART v. DRAPER et al.
• Court: Missouri Court of Appeals

112 S.W. 709

133 Mo. App. 50

MEINHART v. DRAPER et al.

St. Louis Court of Appeals. Missouri.

July 18, 1908.

1. PARTNERSHIP—THE RELATION.

Partnership is the relation subsisting between two or more persons who have contracted together to share, as common owners, the proceeds of a business carried on by all or any of them for the benefit of all.

2. SAME—REQUISITES—AGREEMENT TO SHARE PROFITS.

An agreement to share profits is an essential element in every partnership, and the absence of profit sharing is conclusive that a partnership does not exist; and voluntary associations, owning property, conducted for the mere purpose of convenience or social relations, and not for profit, are not partnerships.

3. SAME.

Certain persons organized a rural telephone association for their benefit, and not for profit; the several members contributing their labor and a small amount each to construct the line from a dwelling to a nearby town, where it connected with a telephone switchboard occupied by other telephone lines, and the members of the association making assessments to pay for their interest in the switchboard. Every member could erect a spur line to his residence from the main line, and the spur lines and telephones where the property of such member, who could use the line free, the only charge being to strangers using it, which went to those having charge of the switchboard; and the main line was maintained by pro rata assessments against the individual members. Held, that the association was not a partnership, but a joint voluntary association.

4. PARTITION — PROPERTY SUBJECT — JOINT PROPERTY.

The property was held in joint ownership and subject to partition, under Rev. St. 1899, § 4432 (Ann. St. 1906, p. 2431), permitting any one or more joint owners to have partition of personal property, or of its proceeds, if it is incapable of division.

Appeal from Circuit Court, Clark County; E. R. McKee, Judge.

Suit by Lewis Meinhart against Claude Draper and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Berkheimer & Dawson, for appellants. John D. Smoot and Chas. Hiller, for respondent.

NORTONI, J.

This is a suit to partition personal property. Plaintiff recovered. The court found the property was incapable of division in kind, and ordered it sold, as is usual in partition proceedings in such circumstances. Our statute (section 4432, Rev. St. 1899 [Ann. St. 1906, p. 2431]) authorizes such a proceeding by any one or more of two or more joint owners of personal property, other than boats and vessels, etc. The property involved, the partition of which is sought in this particular instance, is a telephone line, some 10 or 12 miles in length, situated in Clark county. A number of farmers entered into a voluntary association for the purpose of constructing and maintaining a telephone line, commencing at the residence of one of them and terminating at the town of Wyaconda, at which town it connected with a switchboard into which converged several other lines as well. The line passed near the farms of the several joint owners, and by means of a short spur and telephone the residence of each was connected therewith. The purpose of the line was for the convenience and accommodation of the several owners thereof. After hearing the evidence, the court found that the several parties to the record were jointly interested therein, setting out the several interests; that the property was incapable of division in kind; and therefore ordered its sale under the provisions of the partition statute. Defendants prosecute the appeal.

The only argument advanced here for a reversal of the judgment is that the association was a partnership, and the property sought to be partitioned is partnership property. It is said, in such circumstances, a proceeding in partition will not lie, and that the...