Miller v. Miller

• Decision Date: 25 November 1925
• Docket Number: 24638
• Parties: ALICE W. MILLER, by OTTO HAMPE, Guardian, Appellant, v. A. C. MILLER and WILLIAM GUETEBIER
• Court: Missouri Supreme Court

277 S.W. 922

311 Mo. 110

ALICE W. MILLER, by OTTO HAMPE, Guardian, Appellant, v. A. C. MILLER and WILLIAM GUETEBIER

No. 24638

Supreme Court of Missouri

November 25, 1925

Appeal from St. Louis City Circuit Court; Hon. Robert W Hall, Judge.

Affirmed.

Abbott Fauntleroy, Cullen & Edwards, Taylor R. Young and August M. Brinkman for appellant.

(1) The existence of a partnership is a question of intention and when there is no specific contract of partnership the court will look at the entire transaction, and from that, in the light of the surrounding circumstances, determine the intention of the parties. Torbert v. Jeffry, 161 Mo 645; McDonald v. Matney, 82 Mo. 358; Distilling Co. v. Wilson, 172 Mo.App. 612; Willoughby v. Hildreth, 182 Mo.App. 80. (2) Where partners mutually contribute capital or service or both to an enterprise, the sharing of profits is prima-facie evidence of a partnership. 35 Cyc. 414, and note 20; Torbert v. Jeffry, 161 Mo. 645; Nugent v. Armour Packing Co., 208 Mo. 498; Bank v. Altheimer, 91 Mo. 180; Grocery Co. v. Barry, 58 Mo.App. 665; Distilling Co. v. Wilson, 172 Mo.App. 612; Willoughby v. Hildreth, 182 Mo.App. 80.

Fish & Fish for respondents; James T. Roberts of counsel.

The existence of a partnership is never assumed and in a contest between alleged partners the proof of the partnership must be by the clearest and most positive evidence. Jones v. Bruce, 211 S.W. 692; Chapin v. Cherry, 243 Mo. 375; Whittling v. Schreiber, 202 S.W. 418; Fuel Co. v. Brady, 208 S.W. 151; Mackie v. Mott, 146 Mo. 230; Ingals v. Ferguson, 59 Mo.App. 299.

Seddon, C. Lindsay, C., concurs.

OPINION

SEDDON

Action in equity for the appointment of a receiver of an alleged partnership and for an accounting, originally commenced by Alice W. Miller, wife of respondent A. C. Miller, as plaintiff. The salient allegations of plaintiff's petition are as follows:

"Plaintiff states that she is the wife of the defendant, A. C. Miller, and that on or about the day of December, 1910, plaintiff and the defendants agreed to form a co-partnership under the name of A. C. Miller Grocery Company, plaintiff and defendants each to have a one-third interest therein and to equally share the profits and losses of said business; that plaintiff and the defendant A. C. Miller contributed their portion of the capital towards said enterprise and the said co-partnership of A. C. Miller Grocery Company was launched at 6006 Kingsbury Boulevard in the city of St. Louis, Missouri, but whether the defendant William Guetebier ever contributed any capital towards the co-partnership this plaintiff is unadvised; that thereafter, and to this date, said co-partnership has been conducting a retail grocery store on Kingsbury Boulevard in said city and has prospered; has accumulated a large stock of groceries of the reasonable market value of twenty thousand dollars and has no debts; that from the profits derived from the operation of said co-partnership business valuable real estate has been acquired, and the title thereto has been taken in the name of A. C. Miller and William Guetebier, and which said real estate is situated in the city of St. Louis, State of Missouri, and is more particularly described as follows, to-wit: [Here follows description of land.]

"Plaintiff further states that said foregoing described real estate is of the reasonable market value of thirty thousand dollars. Plaintiff further states that she and the defendants have been operating said grocery store since the date of the organization of said co-partnership as aforesaid, and plaintiff and the defendant A. C. Miller have contributed their time towards said enterprise without any compensation whatsoever, until the 28th day of October, 1921, at which time the defendant A. C. Miller permitted an employee of said grocery store to assault the plaintiff, which resulted in plaintiff being confined to her bed and incapacitating her from doing any other further work in said co-partnership store, and now the defendant A. C. Miller denies that the plaintiff has any right, title or interest in any portion of said co-partnership assets, although he is willing to pay to the plaintiff one-half of the interest which he holds and claims to have in said co-partnership if she will obtain a divorce from the defendant A. C. Miller. Plaintiff further states that the defendant A. C. Miller is squandering the assets of said co-partnership and using the funds of said co-partnership for purposes of dissipation, and unless this Honorable Court will appoint a receiver to take charge of the said co-partnership and the assets thereof and wind it up, pay its debts and account to each of the partners as their interest may appear, plaintiff will lose all her rights and interest in and to said co-partnership business, including the real estate belonging to said co-partnership hereinbefore described. Plaintiff further states that the defendants and each of them have so manipulated said co-partnership during the past two years as to deprive the plaintiff of any profits and income derived from the operation of said grocery store; that she has no adequate remedy at law and without the intervention of a court of equity she will lose all her right, title and interest in and to said real estate and said business, including the profits and income therefrom during the last two years. Plaintiff further states that the defendants have taken the funds of the said co-partnership, the exact amounts of which and the dates when taken are to the plaintiff unknown, but plaintiff alleges that said sum is in excess of ten thousand dollars, and have invested the same in their own personal enterprises."

The prayer is for the appointment of a receiver to wind up the affairs of the alleged co-partnership, convert the assets into cash and, after the payment of its debts, that the proceeds be divided among the alleged partners as their several interests may appear, and for an accounting.

Respondents joined issue by answering as follows:

"Now come the defendants and each of them and file this, their answer, to the petition filed in this cause. The defendant A. C. Miller admits that the plaintiff is his wife, and that a partnership was entered into between A. C. Miller and William Guetebier, on or about December, 1910, under the name of the A. C. Miller Grocery Co., and that they are still conducting said business and partnership at 5947 Kingsbury Ave., in the city of St. Louis, Missouri. That the profits of said partnership in said business have been invested in real estate as alleged in the petition and that the said real estate is in the names of A. C. Miller and Wm. Guetebier, who jointly hold title in said real estate, and that said real estate is free of all incumbrances and debts, and that said grocery business is in a profit-sharing condition and is not subject to any debts with the exception of monthly current bills and that business is in a solvent condition, and each of said defendants deny each and every other allegation as contained in said petition."

Plaintiff's reply was a general denial.

Only one witness, the appellant, Alice W. Miller, plaintiff below, testified on the trial. As we read the record, her testimony, insofar as it is material to the question raised on this appeal, is substantially as follows:

Plaintiff is the wife, and defendant Guetebier is the brother-in-law, of defendant Miller; plaintiff, before her marriage, had worked as a domestic servant and from her earnings had saved several hundred dollars, which she deposited from time to time in a savings account with St. Louis Union Trust Company. After her marriage with defendant Miller, she continued working and deposited her earnings, or the greater part thereof, in her personal savings account. On June 17, 1908, she withdrew from this account $ 1,000, which she loaned to the mother of defendant Miller. In May, 1911, the loan was re-paid to plaintiff and the money was used "to go into the grocery business with Elmer Knestead, under the name of Knestead & Miller; defendant Miller had no money and plaintiff used the $ 1,000 to go into the grocery business with Elmer Knestead." Her exact testimony with reference to this business venture may be better expressed in her own words:

"Q. Who went into business? A. Mr. Miller and I, and Elmer Knestead.

"Q. Under what name did you go into business? A. Knestead & Miller.

"Q. (By the Court): What I want to find out is what was said at the time you opened up that store; do I understand there were three of you in the business at that time? A. There was Mr. Miller and Knestead, and I was backing Mr. Miller to put the money in -- he and I were partners.

"Q. (By the Court): Now, if I understand, did you say there were three of you went into business together? A. Mr. Knestead, Mr. Miller and myself.

"Q. Did you loan this money to your husband? A. I went in 50-50 with him."

Witness testified she did not remember exactly what the conversation was, except that she was "to go up and help him work and keep from paying salary and it was understood that they were to share 50-50."

"Q. (By the Court): Everything he owned was his and what was yours was his also; that is the old common-law? A. It used to be, but it is different now.

"Q. (By the Court): Well, I am trying to get at what conversation you had there, how you went into business together, what was said about it? A. Well, there wasn't anything in writing that is the reason things -- just simply went in there and bought this, and paid that, and there was no receipts for it; never was a disagreement there, so it was either buy or sell there.

"Q. What was said between you and Mr. Miller and Mr. Knestead about what amount of money --

"Q. (By the Court): How...