Neville v. D'Oench

• Decision Date: 05 January 1931
• Docket Number: 28478
• Citation: 34 S.W.2d 491,327 Mo. 34
• Parties: N. O. Neville and R. L. Johnson v. H. F. D'Oench, L. R. Powell and International Bank of St. Louis; H. F. D'Oench, Appellant
• Court: Missouri Supreme Court

34 S.W.2d 491

327 Mo. 34

N. O. Neville and R. L. Johnson v. H. F. D'Oench, L. R. Powell and International Bank of St. Louis; H. F. D'Oench, Appellant

No. 28478

Supreme Court of Missouri

January 5, 1931

Motion for Rehearing Overruled January 5, 1931.

Appeal from Circuit Court of City of St. Louis; Hon. John W Calhoun, Judge.

Affirmed.

Nagel & Kirby, E. G. Curtis and H. W. Kroeger for appellant.

(1) A contract may be implied in fact from the conduct of the parties. State v. Christopher, 2 S.W.2d 626. (2) When a contract may be implied in fact from the conduct of the parties, the court cannot make one for the parties by implication of law. Weinsberg v. Cordage Co., 135 Mo.App. 565. (3) The undisputed evidence disclosed a consistent mode of dealing which defines the rights and liabilities of the parties and negatives the existence of a contract as alleged in the petition. (4) By the weight of the evidence no contract, either of joint venture or partnership existed between plaintiffs and defendants, nor between either of plaintiffs and defendant D'Oench.

Fordyce Holliday & White, Bennett C. Clark and Walter R. Mayne for respondents.

(1) The findings of the referee, confirmed by the court below, are clear, logical and uncontradictory. They find an express contract substantially as alleged by plaintiffs and make no attempt to imply one by operation of law. The report furnishes no case for the application of the authorities cited in appellant's brief. (2) Although this court will consider the evidence in an equity case de novo, great deference is shown to the findings of the Chancellor. And this is especially true where the issues, as in this case, are largely determined by the credibility of witnesses. Keener v. Williams, 307 Mo. 705; Creamer v. Bivert, 214 Mo. 479; Reed v. Steward, 276 S.W. 12; Williams v. Hybskmann, 278 S.W. 377, 311 Mo. 332; Steffen v. Stahl, 273 S.W. 118; Huffman v. Huffman, 217 Mo. 182; Price v. Morrison, 236 S.W. 297, 291 Mo. 266; Seattle v. Perle, 281 S.W. 431; Broaddus v. Broaddus (Mo. App.), 221 S.W. 804; Williams v. Peterson, 271 S.W. 1016; F. C. Church Shoe Co. v. Turner, 218 Mo.App. 516; Pfotenhauer v. Ridgway, 271 S.W. 50, 307 Mo. 529. And the rule operates with peculiar force in an appellate court when the findings of a referee have been approved by the court below. 23 R. C. L. 299; Davis v. Schwartz, 155 U.S. 631. (3) The question of waiver and estoppel is not in the case, because not pleaded in defendant's answer. Grafeman Dairy Co. v. N.W. Bank, 288 S.W. 359; Noble v. Blount, 77 Mo. 242. And the court below properly struck out defendant's amended answer pleading waiver and estoppel filed after the trial. Little River Drainage Dist. v. Railroad, 236 Mo. 94; Moore v. Mansfield, 286 S.W. 353; Garton v. Canada, 39 Mo. 357; Delaney v. Delaney, 245 S.W. 1076; Joyce v. Growney, 154 Mo. 263; Clark v. Transfer Co., 127 Mo. 269; State ex rel. Bankers Life Co. v. Reynolds, 277 Mo. 14; Weed Sewing Machine Co. v. Philbrick, 70 Mo. 646; Carter v. Billey, 167 Mo. 564. (4) Appellant's contention in this court is simply an effort to avail himself of the defense of waiver and estoppel without pleading it. (5) The contract which appellant now seeks to imply from the conduct of the parties is utterly at variance with his contentions in the trial and from the whole theory on which his case was tried.

Seddon, C. Ellison and Ferguson, CC., concur.

OPINION

SEDDON

Action in equity, commenced in the Circuit Court of the City of St. Louis on June 20, 1924, wherein plaintiffs (respondents here) seek an accounting and distribution of the profits and assets of an alleged partnership between the plaintiffs and the individual defendants, D'Oench and Powell.

The salient allegations of plaintiffs' verified bill, or petition, are as follows:

"Plaintiffs for their cause of action, state that in or about the month of December, 1918, each of the plaintiffs separately entered into a certain agreement of partnership with the defendant D'Oench, and that later and to-wit, on or about December 6, 1919, both of the plaintiffs, together with defendant D'Oench, entered into a certain oral agreement of partnership ratifying and defining the said separate oral agreements theretofore entered into by each of the plaintiffs separately with defendant D'Oench. Plaintiffs further state that said partnership agreement provided for the practice of the profession of dentistry in the City of St. Louis, Missouri, by the plaintiffs and the defendant D'Oench, as a partnership; that soon thereafter, plaintiffs were informed by the defendant D'Oench that said defendant had made and entered into an agreement of partnership with the defendant Powell, whereby the said defendant Powell was to be admitted to the said partnership of plaintiffs and defendant D'Oench, upon the same terms as the original partners to the said partnership; that said plaintiffs thereupon ratified and accepted the said alleged contract between defendant D'Oench and defendant Powell; but plaintiffs state that they have had at no time any direct contract with defendant Powell, and that their information as to the said contract between defendants D'Oench and Powell is derived wholly from the statements of said D'Oench.

"Plaintiffs state that under the terms of the partnership agreement between plaintiffs and defendant D'Oench, the said parties were to practice the profession of dentistry as a partnership, and a lease for a certain suite of offices in the University Club Building in the City of St. Louis, Missouri, was to be taken by defendant D'Oench upon behalf of the partnership; that the said partnership was to be known as D'Oench-Neville; that a certain sum of money, to-wit, the sum of ten thousand dollars was to be borrowed by the partnership for the purchase of equipment and for the purpose of making a loan in the sum of three thousand dollars to the University Club Building, said loan being necessary in connection with the said lease on the said offices leased by the partnership; that the earnings of all of the partners was to be placed in a common partnership fund; that the rent payable for the said offices under the said lease was to be paid out of said partnership fund, but was to be assessed against the individual earnings of the partners, share and share alike; that the miscellaneous expenses of the partnership, including telephone, clerical hire, pay of office employees, laundry and similar items, was to be paid out of the partnership funds, but assessed against the individual earnings of the partners, share and share alike; that supplies, etc., necessary in the conduct of the business should be paid out of the partnership funds, but should be assessed against the individual earnings of each of the partners in proportion to the amount used by each; that each of the partners was to receive a drawing account, which said drawing account was in each case not to exceed one-half of the gross earnings of said individual partner; that the excess earnings of the said partnership, after paying expenses, and drawing accounts, was to be paid first to liquidate the indebtedness aforementioned, incurred for equipment and the loan to the building company; that after the payment of said indebtedness, the said surplus was to be paid to the said partners in proportion to the net earnings of each; that the said D'Oench was to be the fiscal officer of the said partnership and was to have charge and supervision of the books of said partnership and of the depositing of the funds in the International Bank of St. Louis, collection of accounts, payment of bills, payment of taxes, and other business affairs of the said partnership.

"Plaintiffs further state that in pursuance to said oral partnership agreement, hereinbefore referred to, plaintiffs and defendants proceeded with their profession of dentistry and that large revenue was coming into said partnership, which funds and accounts were under the supervision and control of said defendant D'Oench, and out of the profits of said partnership the loan herein referred to was paid off; that at no time during said partnership did the plaintiffs herein draw in excess of fifty per cent of their gross earnings of said partnership, but the plaintiffs herein aver that said defendant D'Oench did at all times draw in excess of fifty per cent of his gross earnings, contrary to said partnership agreement, and in addition thereto said defendant D'Oench, without the knowledge or consent of plaintiffs herein, did draw large and excessive sums of money from the reserve fund of said partnership, the exact amounts plaintiffs herein are unable to state, unless a full accounting is had of the partnership affairs, as hereinafter more fully set forth.

"Plaintiffs further state that they have been notified by said defendant D'Oench to vacate the offices of said partnership as of the first day of July, 1924, and that the services of said plaintiffs, although partners of said defendant D'Oench, would no longer be needed, and has threatened to oust plaintiffs from said offices if plaintiffs did not voluntarily leave at that time; that plaintiffs herein have a large and substantial interest in said partnership accounts, office appliances, fixtures and supplies on hand, but said defendant D'Oench, contrary to the express partnership agreement, refuses to make a distribution of the partnership assets pursuant to the terms of said partnership agreement; that if said plaintiffs are required to leave said offices on the first day of July, 1924, plaintiffs will be deprived of the use of said offices and cannot carry on their business of dentistry, to the detriment of themselves and their patients, and will suffer irreparable loss and damage by reason thereof.

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