Shrum v. Simpson

• Decision Date: 22 June 1900
• Docket Number: 19,361
• Citation: 57 N.E. 708,155 Ind. 160
• Parties: Shrum, Administratrix, etc., v. Simpson
• Court: Indiana Supreme Court

57 N.E. 708

155 Ind. 160

Shrum, Administratrix, etc., v. Simpson

No. 19,361

Supreme Court of Indiana

June 22, 1900

From the Washington Circuit Court.

Reversed.

J. C Lawler and J. L. Shrum, for appellant.

H Morris and M. B. Hottel, for appellee.

OPINION

Dowling, J.

Appellant 's decedent owned and was in the possession of a farm of 160 acres, in Washington county, Indiana. He entered into a farming contract with the appellee for the term of one year from March 1, 1898. The agreement was by parol. By its provisions, the appellee was to have the possession of the tract for one year from and after March 1, 1898; he was to cultivate the same, the decedent designating what crops should be planted, and in what fields they should be raised; appellee was to have the house, the barn, and the garden plot, and was to pay $ 2.50 per month as rent for them; he was to furnish all work, labor, and farming implements, excepting one-half of a mowing machine; also, one-half of all seeds for all crops, excepting timothy seed for meadow, all of which was to be furnished by decedent in case he required the same to be sowed in wheat ground; decedent was to furnish the other half of all seeds. Each crop grown on said lands was to be divided into two equal parts after it was harvested or gathered, and one of these parts was to belong to the decedent, and the other to the appellee. Each party was to pay for threshing one-half of the wheat, oats, and timothy seed, and, excepting such parts of said grain and seed as the parties mutually agreed to store for later disposition in the markets, or otherwise, the said grains and seed were to be equally divided at the machine. Neither party was to haul away from said lands any of the hay, corn, straw, fodder, or unthreshed oats, but the same were to be fed to the stock on the said farm. One-half of all live stock was to be furnished by each party, and appellee was to care for and feed the same. Neither party was to create any indebtedness for which the other could be made liable. The decedent was to direct when any of the stock should be sold, and, upon a sale of stock, appellee was to pay to decedent one-half of the amount received therefor. All stock, fowls, hay, grain, and oats, were to be divided share and share alike before March 1, 1899, and, if a division could not be agreed upon in any case, the stock not divided was to be sold, and the proceeds divided before March 1, 1899.

It is alleged in the complaint that the appellee took possession of the land under this agreement, that each party furnished the seed, grain, live stock, and other articles required by its terms, and that appellant's decedent died March 11, 1898. It is further alleged that the appellant and appellee acted upon the agreement after the death of said decedent. It is charged that appellee raised upon said lands, during said term, crops of wheat, oats, hay, corn, and stock, of the value of $ 600, a bill of the particulars of which is filed with the complaint; that the appellee sold and disposed of all the stock, grain, fowls, corn, hay, oats, and timothy seed; that appellant has demanded from the appellee one-half of the amounts so received by him, due to said estate, but, that with the exception of one-half of the wheat grown on said lands, the appellee wrongfully retains the same in his possession.

The second paragraph of the complaint does not differ materially from the first, except that it alleges a demand for an accounting, and a refusal on the part of the appellee to account, and, also, that the money and property belonging to the estate of said decedent, in the hands of the appellee, are required to pay to the widow her statutory allowance of $ 500. A demurrer to each paragraph of the complaint was sustained by the court, and judgment was rendered for appellee. These rulings are assigned for error.

The objections taken to each paragraph of the complaint are that it appears from the agreement sued upon that the appellee and the decedent were partners, or, at least, tenants in common of the property on the farm, and that, in either case, one of the parties having died, the appellee, as survivor, is entitled to the possession of the property so held until he has fully settled the business, and that, until such settlement is made, the appellant has no right to sue. 17 Am. & Eng. Ency. of Law, 835; Powell v. Bennett, 131 Ind. 465, 30 N.E. 518; McIntosh v. Zaring, 150 Ind. 301, 49 N.E. 164; Valentine v. Wysor, 123 Ind. 47, 7 L. R. A. 788, 23 N.E. 1076; Thompson v. Lowe, 111 Ind. 272, 12 N.E. 476; Needham v. Wright, 140 Ind. 190, 39 N.E. 510; Holmes v. McCray, 51 Ind. 358, 19 Am. Rep. 735, and Kenyon v. Williams, 19 Ind. 44, are referred to as sustaining these objections. Most of these cases decide nothing more than that, where a partnership is shown to exist, one partner cannot maintain an action against another for his share of the partnership assets until the business of the firm has been wound up, the debts paid, and nothing remains to be done but to divide the residue of the partnership property. Kenyon v. Williams, supra, holds that a partnership may exist in the business of buying and selling real estate. The main question here is, not as to the rights of partners in partnership property, but whether the agreement between the decedent and the appellee created a partnership.

While many definitions of the term partnership are given by...