Parker v. Wells
| Decision Date | 28 October 1907 |
| Citation | 105 S.W. 75,84 Ark. 172 |
| Parties | PARKER v. WELLS |
| Court | Arkansas Supreme Court |
Appeal from Pulaski Chancery Court; Jesse C. Hart, Chancellor affirmed.
Decree affirmed.
W. C Adamson and Carmichael, Brooks & Powers, for appellant.
1. On the application for the appointment of a master, there was evidence clearly showing a sharing of profits between appellee and the intervener. A sharing of profits in no fixed proportion, but upon a basis to be determined by the amount acquired in the conduct of the business, is a cogent evidence of a partnership. 74 Ark. 437; 63 Ark. 518.
Though it may not be erroneous to refuse to appoint a master, yet in complicated transactions it is better to do so. 35 Ark. 113; 86 Wis. 255.
2. It was error to place the burden on the plaintiff to show that the money in bank did not belong to the intervener. 39 Ark 97; 20 Cyc. 1134-5.
3. Wells should have been required to produce in court the documentary evidence called for, which was necessary to throw light on his transactions with the intervener.
4. It was error to hold that the fund in bank belonged to the intervener. Money deposited in bank in an agent's name with his own funds, or kept with his own money, cannot be identified, and, in a contest betwen the principal and a third party, belongs to the agent, 11 La.Ann. 76; 3 Am. & Eng. Enc. of L. 832. sec also 5 Cyc. 515.
E. M Merriman, for appellees.
1. Since the chancellor found that there was no necessity for the appointment of a master, and it was within his discretion to make his own findings without the assistance of a master, appellant cannot be heard to complain. The chancellor may himself state an account if he chooses. 35 Ark. 113.
2. The evidence does not establish a partnership between the defendant and intervener. One who is to share in profits as compensation for services is not a partner. 1 Bates, Partnership, § 43. Community of loss and profit is the test of partnership. 7 Ala. 569; 19 Ala. 744;14 Ala. 303. It is shown in evidence that Wells did not share in the losses.
3. The court properly refused to compel the witness Wells to produce the documentary evidence called for. It was irrelevant to the issue raised by the intervention. Moreover, Wells and Carden had been made appellant's own witnesses, and he would not be permitted to introduce documentary or other evidence to contradict them.
MCCULLOCH, J, HART, J. disqualified and not participating.
Parker recovered judgment at law against Wells for $ 500, and then instituted this suit in equity king to subject toward the satisfaction of his judgment a sum of money deposited in the Exchange National Bank of Little Rock by Wells in the name of the Arkansas Loan & Collection Agency. It is alleged in the complaint that the money deposited as aforesaid belonged to Wells, that the Arkansas Loan & Collecting Agency was a mere trade name of Wells in which he was doing business, and that he had deposited the said funds in bank under that name as a device, among others, to cover up his property and put it beyond the reach of his creditors. The Exchange National Bank was made party defendant, and answered that it had on deposit the sum of $ 129.66 in the name of the Arkansas Loan & Collecting Agency.
Wells filed his answer, denying that the money belonged to him and alleging that the same belonged to one A. J. Carden.
Carden filed his intervention, claiming the funds on deposit in the bank; that Wells was his agent, and deposited the money as such agent, and had no interest therein. Parker filed his answer to this plea, denying the allegations thereof, and upon the issues thus raised the chancellor heard the case and rendered a decree in favor of the intervener. The plaintiff appealed. The only testimony introduced at the trial was that of the intervener, Carden, given by deposition, and that of the defendant, Wells, given orally in open court.
This testimony was to the effect that Carden, from time to time, placed money in the hands of Wells for the latter to lend at interest and to purchase the time or wage checks of railroad employees, under an agreement that Wells should receive one-half of the interest on money loaned and checks purchased as compensation for his services. They both testified that Wells had no interest in the money deposited in bank, but that it belonged to Carden. Wells testified that he spent his share of the profits as fast as they were earned and collected.
We are of the opinion that the testimony sustains the finding of the chancellor that the funds on deposit...
To continue reading
Request your trial
-
McCoy Farms, Inc. v. J & M McKee, 77-201
...Ark. 428; Globe Life Ins. Co. v. Humphries, 258 Ark. 118, 522 S.W.2d 669; Bates v. Simmons, 259 Ark. 657, 536 S.W.2d 292; Parker v. Wells, 84 Ark. 172, 105 S.W. 75; Kelly v. DeWees, 200 Ark. 770, 140 S.W.2d 1011. Error unaccompanied by prejudice, commonly called harmless error, is not groun......
-
Ward v. Sturdivant
...remedies. 89 Ark. 23. W. C. Rodgers, for appellee. 1. In all equity cases the trial here is de novo. 73 Ark. 187; 75 Ark. 72; 76 Ark. 153; 84 Ark. 172. And if the decree was correct, it is immaterial what reasons were given in the finding of facts. 49 Ark. 20; 73 Ark. 418; 75 Ark. 107; 79 A......
-
McKelvey v. John Schaap & Sons Drug Company
...Appellant Meyers was not liable nor was Barr, as the sale was not void under the Bulk Sales Act. 95 A. 788; 201 F. 169; Acts 1913, p. 326; 84 Ark. 172; 36 Id. 612; Id. 57; Bales on Partnership, § 566; 79 Ark. 113; 145 S.W. 1076. 6. Mrs. Barr was an innocent purchaser and not liable. 87 Wash......
-
Randleman v. Taylor
...binding on both parties. 15 Ark. 297; 23 Ark. 704; 71 Ark. 248; 75 Ark. 248. The judgment is right, and should be affirmed. 81 Ark. 247; 84 Ark. 172; 85 Ark. 451; 89 Ark. 154; 90 Ark. OPINION HART, J., (after stating the facts). Counsel for appellant assign as error the action of the court ......