R. & J. Dick Company v. Blue Trap Rock Company

• Decision Date: 13 March 1922
• Docket Number: 229
• Citation: 238 S.W. 609,152 Ark. 465
• Parties: R. & J. DICK COMPANY v. BLUE TRAP ROCK COMPANY
• Court: Arkansas Supreme Court

238 S.W. 609

152 Ark. 465

R. & J. DICK COMPANY v. BLUE TRAP ROCK COMPANY

No. 229

Supreme Court of Arkansas

March 13, 1922

Appeal from Pulaski Circuit Court, Third Division; Archie F. House Judge; affirmed.

Judgment affirmed.

Emerson Donham & Shepherd, for appellant.

The court erred in refusing to hold that Fulton and appellee were partners, and that their agreement as well as their dealings with third parties constitued such a relation. 44 Ark. 423; 80 Ark. 29. An agreement may constitute a partnership as to third parties, when it creates no such relation between the parties themselves. 2 Ark. 354. Partnership may be proved by circumstantial evidence. 5 Ark. 61; 32 Ark. 740; 145 U.S 611; 63 Ark. 518; 93 Ark. 524.

Appellee is estopped by its own conduct to deny the partnership as it acted in such manner as to mislead third parties. 29 Ark. 512; 80 Ark. 23; 95 Ark. 1; 32 Ark. 733.

The belt, when installed, became a fixture and a part of the realty and is not removable as personal property. 73 Ark. 227; 120 Ark. 252; 119 F. 438; 128 F. 355; C. & M. Dig., sec. 6906; 63 Ark. 369.

OPINION

HUMPHREYS, J.

Appellant instituted suit against appellee in the Pulaski Circuit Court to recover $ 541.40, the sale price of 85 feet of machine belting which it is alleged appellant sold to George R. Fulton and appellee, and which was attached by George R. Fulton as a part of the machinery constituting a rock plant owned by appellee. Appellant sought to hold appellee liable as a partner of George R. Fulton, who ordered and received the belting from appellant and attached same to said machinery. Appellee filed an answer denying the indebtedness, and the case proceeded to a trial before the court, sitting as a jury, upon evidence responsive to the issue joined, as to whether George R. Fulton and appellee were partners in the operation of the rock plant belonging to appellee at the time the belting was purchased and attached to the machinery. The belting was ordered during the operation of the rock plant by George R. Fulton, under the following contract (omitting formal parts):

"1. This agreement, made and entered into at Little Rock Arkansas, this 1st day of April, 1919, by and between the Blue Trap Rock Company, a corporation incorporated under and by virtue of the laws of the State of Arkansas, hereinafter called the first party, and George R. Fulton, hereinafter called the second party, witnesseth:

"2. In consideration of the sum of one dollar ($ 1) in hand paid the first party by the second party, the receipt of which is hereby acknowledged, and for the further consideration hereinafter set forth, the first party hereby grants to the second party the right and privilege of operating for a period of one year from date, the crushing plant and quarry, with all buildings, machinery, tools, wagons, appurtenances, together with sufficient land contiguous thereto, formerly the property of Chas. M. Newton Trap Rock Company, necessary for the operation of said crusher and quarry, also the railroad track, the property of the Mining Railway Company, all situated in Pulaski County, Arkansas, upon terms and conditions as follows:

"3. The second party agrees to operate the plant, quarry and crusher at his own expense and supervision and to make all needed repairs at this time for putting same in proper condition for operation, and at the expiration of this lease to return all buildings, machinery, crusher, tools, etc., to the first party in as good condition as when taken over by him, or in better condition.

"4. As a further consideration for the execution of this lease and agreement, the second party agrees to furnish and crush rock and deliver same f. o. b. cars at said quarry at and for the price of ninety cents (90) per ton of 2,000 pounds. The basis of settlement between the parties is to be determined and governed by the net weight of the loaded cars at the quarry, according to railroad weights as a basis of freight charges.

"5. The first party agrees to pay for said stone the sum of ninety cents per ton, as aforesaid, advances to be made weekly, and final settlement on the 10th of each month for all stone loaded during the previous month.

"6. The stone to be furnished under this agreement shall be merchantable stone, in sizes known as one, two and three. And where any stone is rejected and the first party is unable to make satisfactory adjustment with the buyer, such stone is to be turned over to the second party or held subject to his orders, and he shall be liable for the transportation, demurrage and handling thereof.

"7. This agreement does not contemplate screenings, but the first party will endeavor to dispose of same when possible to the best advantage, and upon any sales thereof to allow the second party sixty (60) per cent. of the gross amount received from such sales, provided same shall not exceed ninety (90) cents per ton.

"8. As a further consideration for the payment of rent, the second party agrees to pay the first party two-thirds (2-3) of the net profits from the operation of the quarry and the sale of rock at the aforesaid price of ninety (90) cents per ton. The other one-third (1-3) shall be retained by the second party. In addition to the necessary operating expenses, including necessary expenditures in the operation of the quarry, said second party shall be permitted to make a charge for his salary of not exceeding three hundred dollars ($ 300) per month.

"9. The second party agrees to operate the quarry continuously to the very best of his ability, and agrees to turn out not less than fifty thousand (50,000) tons per annum, and the first party agrees to take the output, not to exceed ninety thousand (90,000) tons...