Sharpe v. Johnston
| Decision Date | 31 March 1875 |
| Citation | 59 Mo. 557 |
| Parties | JOHN W. SHARPE, Respondent, v. JAMES JOHNSTON, et al., Appellants. |
| Court | Missouri Supreme Court |
Appeal from St. Louis Circuit Court.
Henderson & Shields, for Appellants.
I. The 1st and 12th instructions given for plaintiff are erroneous because they are mere abstract propositions of law, and tend to mislead the jury. The issue was not the guilt or innocence of plaintiff, but whether, from all the facts and circumstances connected with the matter, the defendants had reasonable cause to believe him guilty.
II. The 2d instruction given for plaintiff is erroneous, because it submitted the question whether there was probable cause, to the jury. That is a mixed question of law and fact. The jury must pass upon the existence of the facts, and the court must declare, as a matter of law, whether they do, or do not constitute probable cause. The instruction is misleading, because it leaves no alternative to the jury but to infer malice from want of probable cause, if they find no probable cause exists. While they jury may so infer, if the facts justify such inference, the finding of probable cause does not necessarily carry with it malice in fact, and no inference of malice arises therefrom as a matter of law. (Ammerman vs. Crosby, 26 Ind., 456; Beale vs. Robertson, 7 Ired., 280-2-3; Wade vs. Walden, 23 Ill., 425; Israel vs. Brooks, 23 Ill., 575; Diggs vs. Hurton, 44 Vt., 147; Deitz vs. Langfelt, 63 Penn. St., 234-40; Whitefield vs. Westbrook, 40 Miss., 311-17; Greenwade vs. Mills, 31 Miss., 464; Boyd vs. Cross, 35 Md., 194-97; Vanderbuilt vs. Mathis, 5 Duer, 304-9; see also, Harkroder vs. Moore, 44 Cal., 144; Levy vs. Brannan, 39 Cal., 485; Humphreys vs. Parker, 52 Me., 502; Buckley vs. Smith, 2 Duer, 261-71; 13 Gray, 201.)
III. The finding of an indictment by a grand jury is prima facie evidence of probable cause, and imposes the burden of proving express malice upon plaintiff. (Garrard vs. Gillett, 4 J. J. Marsh., 629; Brown vs. Griffen, Cheves [South Carolina], 32; Golding vs. Crowle, Sayer R., [K. B.] p. 1.)
IV. The 9th instruction given for plaintiff is erroneous. Community of loss, as well as profit, is a necessary ingredient of a partnership inter partes; or the parties must share in the capital stock, and in the profits, as principals.
V. The 10th instruction given for plaintiff is erroneous in its statements as to the accounting, as all the facts therein cited may exist and yet it be a final accounting of the partnership affairs. The balance of $968 was secured by plaintiff to defendants by deed of trust. Plaintiff was liable on the notes only in the contingency of their not being collected. It was an individual liability as guarantor. The only joint property was the mule sheds, for his interest in which, plaintiff could have had his action at law against defendants (Byrd vs. Fox, 8 Mo., 574 and Buckner vs. Ries, 34 Mo. 357.)
The 11th instruction given for plaintiff is erroneous. Admitting there was a partnership, admitting there was a partial settlement only, there was no contradiction of the fact that the draft of Stewart was turned over as cash to McPike, Johnston & Co. by plaintiff, and that he afterwards received the same for collection from them, and to be collected for their benefit and on their account. The division of partnership property among the partners severs the unity, and it becomes individual property, even though the partnership is not finally settled. One partner can sue another partner collecting the proceeds of any such property so turned over, to the first, at law, for conversion, and recover on his individual account. Why then cannot such severed property be the subject of embezzlement under our statute? The object of this instruction was to make prominent the idea that plaintiff had an interest in the Stewart draft, hence the 13th instruction, given for plaintiff, was asked. Both these instructions were erroneous, (assuming that a partnership existed) in that they negatived any idea of a severance of the unity of any of the partnership property during the existence of the partnership. (Dakin vs. Grimes, 48 N. H., 48; Crosby vs. Nichols, 3 Bosw., 450-454; Seamon vs. Johnson, 46 Mo., 111; Parsons on Partnership, 276; Adams Eq., 239; Whitehill vs. Shickle, 43 Mo., 543; Russell vs. Grimes, 46 Mo., 410; Vanness vs. Forrest, 8 Cranch, 30; Smith vs. Lusher, 5 Cowen, 688; Henly vs. Soper, 8 Barn & Cres, 16; Gibson vs. Moore, 6 N. H., 547; Preston vs. Stratton, 1 Anst., 50; 2 Mann & Ryl., 153.)
VI. The 3d instruction for defendants given by the court, at its own instance, was wrong. Defendant need not show that counsel advised the prosecution, in order to show probable cause, all that is necessary, is advice from counsel that in the given state of facts, plaintiff is guilty, or legally liable to a criminal prosecution. (Collins vs. Hoyte, 50 Ill., 337-351; Same case, 50 Ill., 353-354; Scotten vs. Longfellow, 40 Ind., 23; Potter vs. Scale, 8 Cal., 217; Fisher vs. Fireste, 33 Penn. St., 501; Stevens vs. Fassett, 27 Me., 266; Walter vs. Sample, 25 Penn. St., 275-77; Williams vs. Van Meter, 8 Mo., 343; Blunt vs. Little, 3 Mason, 102; Bliss vs. Wyman, 7 Cal., 257; Hewlett vs. Cruchley, 5 Taunt., 277; Baldwin vs. Weed, 17 Wend., 224; 6 Jones, N. C., 545; 6 Barb., 83; Stone vs. Swift, 4 Pick., 393; Callahan vs. Caffarata, 39 Mo., 136; Hill vs. Palm, 38 Mo., 13; Alexander vs. Haris, 38 Mo., 265.Lackland, Martin & Lackland, for respondent.
I. The first instruction given for plaintiff is conceded in the second instruction given at instance of defendant. The second instruction for plaintiff is supported by Williams vs. Vanmeter, 8 Mo., 339; Callahan vs. Cafferata, 39 Mo., 136; Casperson vs. Sproule, 39 Mo., 39. Plaintiff's third instruction is supported by Hill vs. Palmer, 38 Mo., 13. His fourth instruction is right. (Buckley vs. Knapp, 48 Mo., 158.) His fifth instruction in relation to express malice is proper. (Buckley vs. Knapp, supra; Hill vs. Palmer, supra. His seventh and eighth instructions are taken from Hill vs. Palmer, supra, and Alexander vs. Harrison, 38 Mo., 308. Plaintiff's twelfth instruction is taken from the statutes on Crimes and Punishments. His thirteenth instruction is only in explanation of the statute requiring the presence of a felonious intent. Plaintiff's fourteenth instruction was taken from Hill vs. Palmer.
II. Plaintiff's ninth instruction is a correct declaration of the law of partnership.
1. Where two parties agree to carry on any business and to divide the profits of it between them, the association is in law a partnership. A communion in profits constitutes a partnership. This is the prima facie import of the arrangement.
2. No other relation than that of a partnership can be attributed to an agreement disclosing these elements alone, because a communion of profit implies a communion in losses. But this inference of the law is not conclusive. It may be rebutted by the presence of other stipulations at war with the conclusion or inference of a partnership, showing that a partnership was not intended. (Friehoff vs. Dudley, 40 Ill., 406; Duryea vs. Whitcomb, 31 Vt., 399-400; Pollard vs. Stanton, 7 Ala., 761; Kerr vs. Potter, 6 Gill., 424; Bigelow vs. Elliott, 1 Clif., 39; Parker vs. Fergus, 43 Ill., 437; Gibson vs. Stone, 43 Bark., 285; Williams vs. Scoulter, 7 Iowa, 435; Scuter vs. Milliken, 47 Ill., 178; Salter vs. Ham. 31 N. Y., 321; Gill vs. Kuhn, 6 S. & R., 335; Price vs. Alexander, 2 Iowa, 432; Ellsworth vs. Pomeroy, 26 Ind., 162; Elgin vs. Webster, 5 Mus. & W., 518; Whitehill vs. Shickle, 43 Mo., 458.)
When received by a party in a subordinate capacity as compensation for services in that capacity, nothing being said about losses, no partnership arises. (Bailey vs. Clark, 6 Mas., 374; Hazzard vs. Hazzard, 1 Story, 373; Moore vs. Smith, 19 Ala., 775; Rawlinson vs. Clark, 15 Mees. & W., 300; Beacham vs. Dodd, 3 Harrington, 485; Metting vs. Colt, 3 Halst., 542; Mervin vs. Playford, 3 Robt., 703; Man vs. Glenbie, 4 Maule, 240.)
3. The rule, that a community of profits implies a partnership, is in accordance with Campbell vs. Dent, 54 Mo., 325; for in that case the implication was rebutted by an express statement, serving the place of a stipulation, to the effect that notwithstanding an interest in the profits, there was no partnership. Besides there did not appear a communion of interest between the parties.
4. As to the conclusiveness of this presumption of law in respect to third persons, see Cox vs. Hickman, 8 H. L. C., 268; Bulton vs. Sharp, 1 Com. P., 86; Hyde...
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