ALLEN, Presiding Judge.
Plaintiff's action is in three counts. The first count is upon a check dated December 18, 1931, directing the Joplin National Bank & Trust Company to pay to Pioneer Oil Company, or order, $30.46, signed by Motor Port, Inc., Fred G. Sebastian and Katherine Freeman Sebastian.
The second count is upon a check dated December 21, 1931, directing the Joplin National Bank & Trust Company to pay to ____ or order, $53.18, signed Motor Port, Inc., Fred G. Sebastian and Katherine Freeman Sebastian.
The third count alleges that John W. Freeman was on the 6th day of October, 1930, and to and including June 4, 1932, the owner and proprietor of a garage business in the city of Joplin. That the said business was being conducted by him, under the name of Motor Port, Inc. That defendant Fred G. Sebastian was a son-in-law of defendant, Freeman, and that on all of said dates was the agent of the defendant Freeman in conducting said garage business; and that between said dates Sebastian, for himself, and as agent of defendant Freeman, purchased of plaintiff certain gasoline and motor oils, covered by the two checks above mentioned in counts 1 and 2, and in addition thereto for gasoline and motor oils, sold on open account, in the sum of $340.62, amounting in all to the sum of $424.26.
To all of which counts of plaintiff's petition, defendant Freeman answered, denying that
he was ever the owner or proprietor of the Motor Port, Inc., and denying that either defendant Sebastian or Katherine Freeman Sebastian, his wife, who was a daughter of defendant Freeman, ever, at any of said times, acted as agent for him (Freeman) in said matter.
The cause was submitted to the trial court, without a jury, and judgment was for the plaintiff on all three counts, with interest, in the total sum of $473.08, from which judgment Freeman (plaintiff in error) brings the case to this court, on writ of error.
The solution of the issues in this case is dependent entirely upon the force and effect, if any, of a certain contract alleged to have been executed on the 6th day of October, 1930 by Motor Port, Inc., by G. L. Childress, president, as party of the first part, and defendant John W. Freeman, party of the second part, which contract appears in evidence and is discussed and construed by Judge Smith, of this court, in the case of Motor Port, Inc., et al. v. Freeman, in 62 S.W.(2d) at pages 479 to 481, inclusive, which contract is the same as the one in issue in the case at bar, and is as follows:
"This contract and agreement made and entered into this 6th day of October, 1930, by and between the Motor Port, Incorporated, a corporation, and G. L. Childress, as parties of the first part, and John W. Freeman, his heirs and assigns, as party of the second part.
"Witnesseth: That for and in consideration of the sum of One ($1.00) Dollar, the receipt of which is hereby acknowledged, the parties of the first part are the owners of all of the stock, equipment and lease at a garage located at the northeast corner of Second and Wall Streets, Joplin, Missouri, commonly called the Motor Port, Inc., and that the parties of the first part upon the date of the signing of this contract hereby agree to turn over to the party of the second part full charge of the business and the use of all tools, machinery, supplies and equipment located in the building of the garage at the northeast corner of Second and Wall Streets for a period from the date of this contract to the end of the first five year period of the lease on said premises from J. M. Leonard.
"It is further agreed between the parties hereto that the party of the second part will keep all tools, machinery and equipment in as good shape as when received by him, actual wear and tear excepted.
"It is further agreed between the parties hereto that the manager for the said garage shall receive a salary of One Hundred and Fifty Dollars ($150.00) per month, payable monthly, and that the office salaries shall not exceed the sum of $100.00 per month.
"It is further agreed between the parties hereto that the parties of the first part shall receive fifty per cent of the net profits derived from the operation of the said garage as aforesaid, and that said profits shall be payable for the first year at the end of the first six month period, and then at the end of the first year, and thereafter during the life of this contract they shall be divided every thirty days.
"It is further agreed between the parties hereto that the parties of the first part will upon the signing of this contract assign and transfer to the party of the second part their lease on said premises, dated the ____ day of 19—, made to them from J. M. Leonard, and also all rights and interests in the subleases now in force on parts of said premises.
"It is further agreed between the parties hereto that the parties of the first part are to turn over for collection all of their accounts receivable to the second part and that the second party shall use every diligent effort to collect said accounts, but that said accounts shall be under the supervision of the parties of the first part at all times; that the said moneys derived from the collection of the aforesaid mentioned accounts shall be the moneys of the parties of the first part, and shall be turned over to the parties of the first part on the 15th day of each month.
"It is further agreed between the parties that the party of the second part, shall as his part of the consideration for this contract, put into the business the sum of Four Thousand Dollars; that he shall put in One Thousand Dollars upon the signing of this contract and will put in the balance as the business needs the same up to the amount of Four Thousand Dollars.
"It is further agreed between the parties hereto that the business shall be carried on under the present name now used by the said corporation, but that the said party of the second part hereby agrees to indemnify the parties of the first part for any loss or damages on account of any liability, injuries or purchase of goods, and that the said party of the second part will hold the parties of the first part blameless for any action of any kind.
"The parties of the first part have an option for a renewal of the lease on said building for another five year period, and if at the end of this contract the said parties of the first part have received an average of One
Hundred Dollars per month for the full term, except the last six months of the said lease, and shall for the last six months receive as much as One Hundred and Fifty Dollars per month, then the parties of the first part agree that this contract shall be extended for another period of five years, and that immediately upon the extension of the contract, the said parties of the first part will give to Fred Sebastian a one-third interest in the aforesaid mentioned corporation, transferring to him stock calling for the aforesaid amount.
"It is further agreed between the parties that the party of the second part shall pay all rents becoming due to said J. M. Leonard and expenses of whatsoever kind and character and shall indemnify the parties of the first part for any rents or expenses which the parties of the first part may have to pay in the operation of said business.
"It is further agreed between the parties if at the end of this contract the party of the second part has not received sufficient profit to reimburse him for the $4,000.00 which he will advance from time to time in the operation of the business, and if the said party of the second part desires to terminate this contract at that time, he may do so by giving thirty days written notice before the expiration of this contract.
"It is further agreed that if at the expiration of this contract the party of the second part has not received his Four Thousand Dollars paid into said business, and the business has not made sufficient profit to justify the renewal of said lease, and said lease is terminated, then the said party of the second part shall have all accounts receivable which the party of the second part may have in the operation of said business at the expiration of this contract.
"It is also understood and agreed that this contract is not transferable either in whole or in part without the written consent of the party of the first part.
"It is further agreed between the parties hereto that both parties shall work to the mutual benefit and interest of the party of the second part, and both parties will use their best endeavors and efforts to get all the business possible for the party of the second part.
"It is further agreed between the parties that the party of the second part shall maintain liability insurance which he shall pay for and all other insurance necessary to hold the parties of the first part blameless for any accident caused by the operation of said garage.
"It is further agreed between the parties hereto that the Three Thousand Dollars paid to J. M. Leonard for lease as advance rental belongs to party of the first part and in no way will be considered a part of this contract.
"In Witness Whereof, the parties have hereunto set their hands in duplicate the day and year first above written.
"[Signed] Motor Port, Inc
"G. L. Childress, President
"Parties of the First Part
"John W. Freeman
"Party of the Second Part....
