Roark v. Pullam
| Citation | 207 Mo. App. 425,229 S.W. 235 |
| Decision Date | 25 March 1921 |
| Docket Number | No. 2527.,2527. |
| Parties | ROARK v. PULLAM. |
| Court | Court of Appeal of Missouri (US) |
Appeal from Circuit Court, Pemiscot County; Sterling H. McCarty, Judge.
Action by W. H. Roark against Tom Pullam. Judgment for plaintiff and defendant appeals. Affirmed.
Ward & Reeves, of Caruthersville, for appellant.
J. E. Duncan, of Caruthersville, for respondent.
Action for damages for breach of warranty in sale of a bull plaintiff purchased from defendant. The price paid was 6 cents per pound, which was the 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. ?outs & San Francisco Railway Company, 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. Pullam, 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:
Q. Were you and him (meaning Rice) partners at that time? A. Well, I furnished the money and he done the buying.
Q. Did not you swear before Justice Burma in the other case that you and he were partners? A. I do not know whether we were or not. He worked on a per cent.
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.
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