Rankin v. Fairley

• Decision Date: 19 March 1888
• Citation: 29 Mo.App. 587
• Parties: JOHN H. RANKIN, Appellant, v. D. A. FAIRLEY, Respondent.
• Court: Kansas Court of Appeals

29 Mo.App. 587

JOHN H. RANKIN, Appellant, v. D. A. FAIRLEY, Respondent.

Court of Appeals of Missouri, Kansas City.

March 19, 1888

APPEAL from Morgan Circuit Court, HON. E. L. EDWARDS, Judge.

Affirmed.

The case is stated in the opinion.

ANTHONY & BOHLING, for the appellant.

I Rankin and Fairley were not partners within the meaning of the law. Clifton v. Howard, 89 Mo. 192; Newberger v. Friede, 23 Mo.App. 631; Priest v Chouteau, 12 Mo.App. 252; Ashley v. Shaw, 82 Mo. 76; Donnel v. Harshe, 67 Mo. 170; Musser v Brink, 68 Mo. 242; S. C., 80 Mo. 350; Reilly v. Reilly, 14 Mo.App. 62; Cramer v. Bachman, 68 Mo. 310.

II. Rankin's declaration that he and Fairley were partners does not make them partners, if the facts in evidence show the contrary, any more than his denial would disprove the existence of a partnership, if the facts showed otherwise. Roth v. Kirchhoff, 12 Mo.App. 599; Dowzelot v. Rawlings, 58 Mo. 75; Campbell v. Dent, 54 Mo. 325.

III. The suit upon the account stated before the justice was not a " strictly equitable proceeding" within the meaning of section 2837, Revised Statutes. Unless the proceeding be strictly equitable, and the justice is called upon to administer equitable relief, he has jurisdiction in all cases of money demands when the amount claimed is within his jurisdiction, and to hear and determine the same, " as the very right thereof shall appear by the testimony." Rev. Stat., sec. 2947.

IV. If a strictly equitable proceeding, and the justice had no jurisdiction, the account could be amended in the circuit court so as to confer jurisdiction. Mitchell v. Railroad, 82 Mo. 106; Kitchen v. Railroad, 82 Mo. 687; Lotman v. Barnett, 62 Mo. 159; Burden v. Hensly, 50 Mo. 238. And jurisdictional defects may be supplied or remedied. Vaughan v. Railroad, 17 Mo.App. 4; 23 Mo.App. 631; Goddard v. Williamson, 72 Mo. 131.

V. After amendment the defendant appearing to the cause of action as amended, gave the circuit court jurisdiction, if it had none before.

VI. A single unsettled item may be sued upon at law. Byrd v. Fox, 8 Mo. 574; Buckner v. Ries, 34 Mo. 357.

VII. It is clear from the evidence, that the item retained in the account had nothing to do with the alleged partnership business. Rankin was employed to do certain work, which he did. If the justice had jurisdiction over any item of the account, it was not lost by uniting with it something without such jurisdiction, especially when the latter was dismissed.

VIII. It is insisted that a justice of the peace has equitable jurisdiction in any case but a " strictly equitable proceeding." The case at bar does not belong to that class. The contrary is held in Newberger v. Friede, 23 Mo.App. 631, but the reasons given are not satisfactory. This case is a money demand, simply, unaffected with complications or trusts.

IX. It was never intended by the legislature to compel parties to go into the circuit court to settle partnership differences of five or ten dollars. We think a fair construction of the law gives the justice jurisdiction even if a partnership existed, which is denied. The justice is not clothed with the authority of a chancellor. His court is simply given jurisdiction and the case is tried like any other.

DRAFFEN & WILLIAMS and D. E. WRAY, for the respondent.

I. The parties were partners in the matter out of which the suit originated. It was a joint venture and under their joint control. Plummer v. Trost, 81 Mo. 425; Snider v. Burnham, 77 Mo. 52; Brownlee v. Allen, 21 Mo. 125; Priest v. Chouteau, 12 Mo.App. 252; Richards v. Grinnell, 50 Am. Rep. 727.

II. The parties jointly procured the land, sowed and harvested the crop, and owned it in common. And their contract and conduct showed their intention to become partners. Richards v. Grinnell, 63 Iowa 34.

III. It is well settled, that an action at law between partners, in reference to partnership matters, and before a settlement, will not lie. The justice of the peace had no jurisdiction, and the circuit court acquired none by the appeal. Newberger v. Friede, 23 Mo.App. 631; McKnight v. McCutchen, 27 Mo. 436; Boyce v. Bowman, 15 Mo.App. 578.

IV. If the justice had no jurisdiction, the circuit court could acquire none, by a renunciation of a part of the demand, after the case reached the latter court. Where the justice had jurisdiction, but the papers failed to show it, this, under the Revision of 1879, may be supplied, by amendment, in the circuit court. It is otherwise, where the case is wholly without the jurisdiction of the justice. McQuoid v. Lamb, 19 Mo.App. 153; Peddicord v. Railroad, 85 Mo. 160; Webb v. Tweedie, 30 Mo. 488. The circuit court had no jurisdiction of the case, when the appeal was first returned to that court. Its jurisdiction, therefore, was not acquired by the appeal. It could not, after the amendment, have proceeded in this particular case, by virtue of its original jurisdiction, six dollars, only, being involved, and the suit being at law. So the court was without jurisdiction, even if a suit at law could be maintained upon one item of a partnership account, when others were in dispute.

V. The amendment did not help the plaintiff. The principle, permitting an action at law between partners, where but a single item of the partnership account remains unsettled, had no application. This does not mean that a suit may be brought for one item, when the evidence develops the fact that the account is unsettled, and a number of other items are in dispute.

ELLISON J.

This suit was commenced before a justice of the peace, and was taken to the circuit court by appeal. The following is a copy of the account sued on before the justice:

" 1886. D. A. Fairley, Dr. To John H. Rankin.

April 6, to 6 days superintendent putting in oats for D. A. Fairley $ 6.00

July 5, to 3 hands 1 1-2 day, $1.50 per day 6.75

July 9, to 3 hands 4 days, $1.50 per day, $18. 1-2 9.00

July 9, to cutting 76 acres of oats, $1.25 per acre, $95. 1-2 47.50

Total amount due Rankin $68.75"

The trial was had before a jury. Rankin, plaintiff, and appellant, testified as per the following synopsis of his evidence: " Taylor was in town one day and he said he had eighty acres of ground he wanted to let to some one to put in. I told him I would like to have that job, if I had some one to help me; " that he saw Fairley (the respondent) and they agreed to take the ground and sow it in oats. The contract with Fairley was " half and half all the way through--half of the teams, half of the hands. I told Fairley when the oats were ready to cut, he said all right. I told him I was going on with the cutting, and I did. Culbertson came to me and asked me if I could not cut the oats (Fairley's half) for a dollar an acre. I said no, I would not. I waited till eight or nine o'clock and Fairley did not come. We cut my half and then cut the balance. We had to cut them for they were dead ripe. I wanted Fairley to pay me half what it cost, but he would not do it. It cost me two dollars and a half per acre, and I charged him $1.25, just half. The oats were to be divided in the shock. Two dollars and a half was the customary price. I cut five or six hundred acres, and never got less for it. There were five or six teams at work when the oats were put in, and I superintended putting them in. The charge for ‘ 3 hands 1 1-2 days at $1.50 per day,’ was for shocking the oats. I was to cut the oats and Fairley was to shock them. I shocked them; he never paid me for it.

CROSS-EXAMINED.--The account is for Fairley's failure to do his half of the work."

Q. " You and he were in partnership? A. Yes, sir. He was to sow them, I was to cut them. We were equal partners in the whole matter. He told me to have the shocking done, and I did."

Q. " Then the whole question grows out of a difference in a partnership transaction. A. Yes, sir."

At this point the defendant objected to the admission of any further testimony, on the ground that an action at law will not lie between partners; and because the justice had no jurisdiction of the case, and this court acquired none. Objection sustained, and plaintiff excepted. The plaintiff then, by leave of the court, dismissed as to all the items of said account except this item: " July 5, three hands 1 1-2 days at $1.50 per day, $6.75." Plaintiff, being recalled, testified: " This item is for shocking the oats. When the oats got ready to cut, I told Fairley to get hands ready for shocking. He told me to do that and he would pay me. So I got men to do the shocking. I paid them six or seven dollars.

RE-CROSS-EXAMINED.--Fairley agreed to furnish the seed and put in the oats. I was to cut them and he was to shock them. They were to be divided in the shock. Fairley told me to hire hands to shock the oats and I did. I paid for it out of my own pocket."

Defendant objected to any further evidence in the case for the reason that it appeared that the suit was an action at law to recover upon an unsettled partnership transaction, and that plaintiff could not maintain the jurisdiction of the court by dismissing all of the account except one item, it appearing that there were other unsettled matters outstanding, and that the account as sued on before the justice...