Roark v. Pullam
| Decision Date | 25 March 1921 |
| Citation | 229 S.W. 235,207 Mo.App. 425 |
| Parties | W. H. ROARK, Respondent, v. TOM PULLAM, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Pemiscot Circuit Court.--Hon. Sterling H. McCarty Judge.
AFFIRMED.
Judgment affirmed.
Ward & Reeves for appellant.
(1) If the contract proved is not the one pleaded, then there is a fatal variance and plaintiff cannot recover. Barber v Improvement Co., 131 Mo.App. 717; Laclede Construction Co. v. Tudor Iron Works, 169 Mo. 137. (2) The instruction clearly went beyond the allegations in the statement of plaintiff's cause of action, which is error. The instructions must be within both the pleadings and evidence. State ex rel. v. Ellison, 270 Mo. 645; State ex rel. v. Ellison, 176 S.W. 11; Degonia v. Railroad, 124 Mo. 589; Mansur v. Botts, 80 Mo. 658; Bank v. Murdock, 62 Mo. 70; Hufft v Railroad, 222 Mo. 286. (3) This submitted a mere conclusion and not a statement of facts to be found by the jury. The instruction is not the law because it did not require a finding by the jury that the defendant was notified to defend the replevin suit. Shultis v. Rice, 114 Mo.App. 274.
J. E. Duncan for respondent.
(1) Whether there is a partnership is a question of law, therefore the statement by the witness and appellant that he and Crice were partners was not for the jury and from this statement the jury would not have been warranted in finding that a partnership existed. Hughes v. Ewing, 162 Mo. 295. (2) The interest in the profits must be mutual; each partner must have an interest in the profits as a principal trader. Campbell v. Dent, 54 Mo. 325; Hughes v. Ewing, 162 Mo. 295; Gill v. Ferris, 82 Mo. 167. (3) If a vendor is in possession of personal property and sells for full value a warranty is implied. Robinson v. Rice, 20 Mo. 229; Hickman v. Dill, 39 Mo.App. 246; Thompson v. Irwin, 42 Mo.App. 403; Ranney v. Meisenheimer, 61 Mo.App. 434; Shultis v. Rice, 114 Mo.App. 274. (4) As the appellant had notice of the replevin suit of J. N. Maxwell v. Ed. Crice, J. W. Manning and Roark, respondent, respondent was entitled to recover the amount of the costs paid by him to the sheriff under the execution for costs in said cause. 35 Cyc. 480; Shultis v. Rice, 114 Mo.App. 274; Johnson v. Meyers, Exec'r, 34 Mo. 255.
Action for damages for breach of warranty in sale of a bull plaintiff purchased from defendant. The price paid was 6 cents per lb. which was a fair market value of the animal at the time. After plaintiff had taken possession and paid for the animal and had it loaded in a car to ship to market, a replevin suit was brought before a justice of the peace by J. N. Maxwell against plaintiff, Ed. Rice, J. W. Manning and St. Louis & San Francisco Ry. Co., claiming that he, Maxwell, was the owner of the bull. This trial resulted in a judgment in Maxwell's favor. An appeal was taken and upon trial in the circuit court Maxwell was again successful. That ended the litigation in that case. Execution was then issued upon the judgment for costs and the sum of $ 173.65 collected from plaintiff under the execution. Defendant Pullam repaid plaintiff the purchase price of the animal but refused to pay the costs of the replevin suit. Plaintiff then brought suit against defendant before a justice of the peace to recover the amount he had been forced to pay as costs in the replevin suit and interest. On the trial in the justice court, judgment went for defendant and plaintiff appealed to the circuit court where he obtained judgment for $ 184.06 and defendant has appealed to this court.
There was no evidence that defendant in selling the bull to plaintiff made any specific warranty. The evidence does show that plaintiff paid a fair price for the bull and he bases his right of action on the implied warranty which the receipt of a fair price carries with it.
When the replevin suit was brought against plaintiff, et al, by Maxwell, plaintiff did not give Pullam written notice and request him to defend the title to the bull. Pullman, however, knew of that suit and employed counsel to defend it in the justice court.
The appellant insists that the evidence shows that a partnership existed between plaintiff and Rice and that the bull was purchased for the partnership and that if any cause of action existed as against this defendant, it was in favor of the partnership and that plaintiff not having secured any assignment from the partnership of that claim, he cannot recover in this action.
The only evidence touching the question of a partnership between plaintiff and Rice consisted of testimony that they were engaged together in the business of buying cattle. That plaintiff had stated in his testimony before the justice that he and Rice were partners. Plaintiff testified in this case in the circuit court on cross-examination as follows:
Except where parties may be held liable to third persons as partners by reason of their conduct by which they are estopped to deny a partnership, the matter of a partnership between two or more persons is a matter of contract between them and the intent of the parties is the guiding star in the interpretation of the contract which it may be contended creates the relation of partners. This question has been so thoroughly discussed in a recent case in this court in an opinion by Judge BRADLEY that we do not deem it necessary to further continue the discussion here. [See Fuel Co. v. Brady, 202 Mo.App. 551, 208 S.W. 151.]
We do not think the evidence in this case sufficient to take to the jury the question of the existence of a partnership between plaintiff and Rice. The testimony that they were engaged in the business of buying cattle together shows only a circumstance that might be of some value in connection with other facts and circumstances but standing alone is of no probative force. The statement, if made by plaintiff in a former trial, that he and Rice were partners, was a mere conclusion and was no evidence that a contract existed between plaintiff and Rice by which they were made partners. [Ellis v. Brand, 176 Mo.App. 383, 390, 158 S.W. 705.]
The only remaining testimony on the question was the testimony of plaintiff in this case that he furnished the money and that Rice worked on a per cent. This could mean nothing more than that Rice did the buying and was to receive a part of the profits as compensation for his services. This did not make him a partner. [Fuel Co. v. Brady, 202 Mo.App. 551, 208 S.W. 151; Hartwell v. Becker, 181 Mo.App. 408, 168 S.W. 837; Skinner v. Whitlow, 184 Mo.App. 229, 167 S.W. 463; Torbert v. Jeffrey, 161 Mo. 645, 61 S.W. 823.]
In the latter case, it is said, page 655, that
The same evidence which shows that Rice was to receive a part of the profits also shows that he received it only as compensation for his services in doing the buying and that rebutted the presumption of the...
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