Pasche v. South St. Joseph Town-Site Co.

• Decision Date: 27 November 1916
• Docket Number: No. 11727.,11727.
• Citation: 190 S.W. 30
• Parties: PASCHE et al. v. SOUTH ST. JOSEPH TOWN-SITE CO.
• Court: Missouri Court of Appeals

190 S.W. 30

PASCHE et al. v. SOUTH ST. JOSEPH TOWN-SITE CO.

No. 11727.

Kansas City Court of Appeals. Missouri.

November 27, 1916.

Appeal from Circuit Court, Buchanan County; T. B. Allen, Judge.

"Not to be officially published."

Action by Charles Pasche and another against the South St. Joseph Town-site Company. From a judgment for plaintiffs, defendant appeals. Judgment affirmed.

See, also, 174 Mo. App. 614, 161 S. W. 322.

Broaddus & Crow, of Kansas City, and John S. Boyer, of St. Joseph, for appellant. Culver & Phillip, of St. Joseph, for respondents.

ELLISON, P. J.

Plaintiffs' action is founded on special tax bills for street paving in the city of St. Joseph which were assigned to them by the contractor. The judgment was for them in the trial court.

It appears that the specifications and contract provided that the paving should be of brick, and that such brick must be manufactured in the state of Missouri. It is contended that this last clause rendered the contract void for two reasons: First, that it interfered with interstate commerce by confining the material within one state; and, second, that by confining the material to one state competition was stified and the right of selection of brick equally as good from other states was cut off.

The first ground is not good, for the reason that, while Congress may make such regulation of interstate commerce as to avoid contracts of this character, it has not done so. The power is invested in Congress, but it has not yet been exercised. The rule is that until the Congress interferes by asserting its power the states are left free and unaffected so far as matters of commerce between themselves is concerned.

The second ground doubtless would have been good if the result of the provision had been to restrain competition and enhance the cost of material to the taxpayer. But it is rendered unsound by reason of the showing in the record that it was admitted that brick manufactured in this state could be purchased for a less price than that manufactured outside the state. Allen v. Labsap, 188 Mo. 692, 87 S. W. 926, 3 Ann. Cas. 306.

It is alleged in the petition that plaintiffs are partners, and the claim is made that the evidence was insufficient to show a partnership; or, at most, the evidence was of such character as to make a question for the jury, under proper instructions, and that such instructions had not been given. The evidence tended to show that the agreement between plaintiffs was that they were to share the profits, but no mention was made of losses. The fact that nothing was said about losses did not destroy the effect of what was expressly said as to the profits. In Lengle v. Smith, 48 Mo. 276, cited by plaintiff, we find this statement:

"The plaintiff and defendant were partners. The one gave his services in buying and collecting the cattle and hogs; the other gave the use of the necessary capital; and they were to divide the profits. This community in the profits made them liable for the losses, there being no special contract in regard to them. Thus were they partners both in the profits and losses of the adventure."

But it is said that error was committed in the last paragraph of plaintiffs' instruction No. 2, reading as follows:

"The jury are further instructed that in determining whether the plaintiffs, Pasche and Craver, intended to be partners and were partners in the transactions above referred to, you have the right to take into consideration, not only the agreement, if...