Paris Mercantile Co. v. Hunter

• Decision Date: 01 April 1905
• Citation: 86 S.W. 808,74 Ark. 615
• Parties: PARIS MERCANTILE COMPANY v. HUNTER
• Court: Arkansas Supreme Court

86 S.W. 808

74 Ark. 615

PARIS MERCANTILE COMPANY v. HUNTER

Supreme Court of Arkansas

April 1, 1905

Appeal from Logan Circuit Court, Northern District, JEPTHA H. EVANS Judge.

Reversed.

STATEMENT BY THE COURT.

Appellee sued the two appellant corporations, Paris Mercantile Company, and Paris Mining & Coal Company, and R. J. Troy, O C. Wood and Henry Stroup, basing his cause of action upon various accounts, assigned to him by coal miners, aggregating the sum of $ 1,159.80. It is alleged in the complaint that the defendants entered into a partnership contract for the development and operation of a coal mine, and that in the course of the operation of the said mine plaintiff and his said assignors were employed by Troy acting for the said co-partners, and the debts sued on thereby incurred. Before trial the plaintiff dismissed as to Stroup. Troy failed to answer. The other defendants demurred generally to the complaint, and, after their demurrer was overruled, answered denying that they had entered into a partnership contract with Troy, or that Troy was acting for them in the operation of the mine and employment of miners. A trial by jury was had, and a special verdict was returned in favor of the plaintiff, whereupon the court rendered judgment against Troy and the two corporations, but dismissed the cause as to the defendant Wood.

The defendants, at the close of plaintiff's testimony and again at the close of their own testimony, asked the court to direct the jury to return a verdict in favor of the defendants, which request was refused, and they excepted. The Paris Coal & Mining Company is a corporation organized for the purpose of doing a coal mining business, and defendant Wood was its president, and defendant Stroup its secretary. It was the owner of a coal mine in Logan County, and by written contract dated June 30, 1900, leased the same to defendant Troy for a term of two years. By the terms of this lease Troy was to operate the mine and pay the mining company a royalty of 25 cents per ton for coal mined therefrom. The Paris Mercantile Company is a mercantile corporation with substantially the same stockholders and under the same management as the mining company. In May, 1901, defendants Wood and Stroup agreed verbally with plaintiff to reduce the royalty on coal to 10 cents per ton, and to advance the money for developing the mine and paying the operating expenses. This was done accordingly. The mining company reduced the royalty to 10 cents per ton, and the mercantile company furnished the money to cover the payrolls, and also sold goods on credit to the miners, and the amounts due the company from the miners were deducted from their wages on payday. Troy settled with the miners at the store of the mercantile company, where the books of the mine were kept by the bookkeeper of that company. The mercantile company received the proceeds of all the sale of coal from the mines and credited same to Troy's account, charging him with the royalty and crediting same to the account of the Paris Coal & Mining Company.

Judgment reversed and cause dismissed.

Anthony Hall, for appellants.

Open book accounts without written assignment do not authorize the holder to maintain an action thereon. 47 Ark. 541. The absence of sharing in profits is a conclusive test that a partnership does not exist. 22 Am. & Eng. Enc. Law, 22; 44 Ark. 423. A peremptory instruction should have been given for appellant. 57 Ark. 461.

Sam R. Chew and H. L. Fitzhugh, for appellee.

The verdict is sustained by the evidence. 44 Ark. 423; 63 Ark. 518.

OPINION

MCCULLOCH, J., (after stating the facts.)

We search the record in vain for evidence legally sufficient to sustain the verdict of the jury. Viewing it in the strongest light favorable to appellee, it fails to establish any partnership contract between the appellants and Troy, or any agreement, either expressed or implied, whereby those corporations should share the expenses or profits of operating the mines. It is not contended that the mining company was a party to any agreement with Troy except its lease contract whereby it was to receive a royalty on the coal mined. The only interest the mercantile company had in the operation of the ...