Smith v. Shotliff
| Decision Date | 03 March 1913 |
| Citation | 154 S.W. 177,169 Mo. App. 66 |
| Parties | SMITH v. SHOTLIFF. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge.
Action by George W. Smith against F. W. Shotliff. Judgment for defendant, and plaintiff appeals. Affirmed.
J. A. Sturges, of Pineville, V. O. Coltrane, of Springfield, and Hugh Dabbs, for appellant. George Hubbert and M. E. Benton, both of Neosho, and Farrington, Pepperdine & Wear, of Springfield, for respondent.
Plaintiff sued the defendant in the circuit court of McDonald county, alleging that on July 26, 1907, he and the defendant entered into a partnership, for the purpose of purchasing a stock of merchandise and carrying on and conducting a mercantile business in Southwest City, in that county, investing therein $3,500, of which plaintiff and defendant each agreed to contribute one-half; that the partnership agreement was verbal; that the defendant was to devote his time to the management of the business, and to receive therefor, besides his share of the profits, a reasonable compensation; that the stock of goods, when this suit was commenced, was of the value of $5,000, and that the firm owned notes and accounts amounting to about $2,400, and that the defendant, shortly before the commencement of the suit, denied all rights of the plaintiff in and to the business; and the plaintiff prayed that the partnership be dissolved, a receiver appointed with power to dispose of the assets of the partnership and to distribute the proceeds thereof between the plaintiff and defendant. To this petition an answer was filed, consisting, in substance, of a general denial.
The application for a receiver was taken up before the judge of the circuit in which the suit was instituted, and was denied, but for what reason is not shown. A change of venue was then taken to Greene county, where the cause was tried on its merits, and judgment rendered for the defendant. After an unavailing motion for a new trial, the plaintiff brought the case here. The printed record covers 468 pages. Four hours were consumed in the oral argument of this case in this court, and we have carefully and critically read all of the testimony in the case.
Plaintiff testified that he had lived in Southwest City since 1867; that he was engaged in the mercantile business there from 1883 to 1897, and that for a number of years he had been and was then cashier of a bank at that place; that at the time the negotiations took place, out of which this controversy arose, and for a long time prior thereto, the defendant was in the employment of a party by the name of Clark, who was conducting a mercantile business in one of the storerooms owned by plaintiff, and that along about the 1st of July, 1907, the defendant told plaintiff that Clark was offering to dispose of this stock at 25 per cent. discount, and plaintiff suggested to defendant that he buy it, and defendant replied that he was not able; that the plaintiff then suggested to him, after the defendant had another conference with Clark, that it was a good proposition, and that he would like to see it continue; that after discussing the proposition again with defendant plaintiff proposed that if the defendant would take entire charge of the business and attend to the buying and selling and the help, and put in $900 of his own money, that the plaintiff would see that he got the remainder of the money, but that plaintiff did not want to be known in the business, because he was working in the bank, which had a line of customers engaged in the mercantile business that would likely take offense if it were known that he was in the same line of business; that the defendant agreed to purchase the stock of goods, and on the following day Mrs. Clark and plaintiff and defendant and one of the clerks in the store commenced the invoice of the stock, which amounted to something like $4,600; and that the plaintiff and defendant then executed and delivered their note for $1,700 to the bank of which plaintiff was cashier, and plaintiff contributed his $900 and defendant his $900, making $3,500, which was the purchase price paid to Clark for the stock of goods.
The defendant testified that the plaintiff came into the Clark store, where defendant was clerking, and said to the defendant that he understood that the stock of goods was to be sold and moved to a point in Oklahoma, telling defendant that he owned the building in which the stock of goods was located and the buildings on both sides of it, and that if the stock was taken away that it would leave the buildings vacant, and suggested to defendant that he buy the stock; that defendant told him he did not have the money, and that the plaintiff asked how much he had, and defendant told him a little over $900, and that plaintiff asked what the stock of goods could be bought for, and defendant told him 75 cents on the invoice price; that plaintiff told defendant he had $900 that he was not using that he would loan him; and that he would go on defendant's note at plaintiff's bank for the balance of the purchase price.
This is the testimony of the parties, and all of the testimony as to what the agreement between them was concerning the formation of a partnership, and the remainder of the voluminous record is devoted entirely to an effort on each side to corroborate his contentions, or to discredit the contentions of his adversary.
Several years before this controversy and the negotiations which led up to it, defendant had married the niece of the plaintiff, and plaintiff had taken considerable interest in the welfare of the defendant. The defendant testified at the time the arrangements were being made for the purchase of this stock that he had offered to have the $900 (which he claimed was loaned to him by plaintiff) included in the note to the bank, and to have his wife sign the note, or to give the plaintiff a note for the $900, signed by himself and wife.
Shortly before negotiations were commenced for the purchase of the stock of goods, Mr. Clark left Southwest City and placed the store in charge of his wife, with whom all negotiations for its sale were had, and the defendant testified that at her request the services of the plaintiff were secured to assist in invoicing; but Mrs. Clark testified that she made no such request, and that it was her understanding that the plaintiff was a partner in the business. Plaintiff and one other witness testified that an inventory, in which plaintiff claims to have assisted, was made in the year 1909, but that it was lost. Plaintiff claims that the invoice disclosed $6,000 net assets, after deducting $700 for the defendant's salary, which, it was agreed, should be $50 per month. In 1910 an inventory was taken, in which plaintiff assisted, which showed $8,000 net assets, and in 1911 an inventory was taken, in which plaintiff assisted, showing the net assets to be $10,150. Defendant claims he used plaintiff in the invoicing because of his ability in that line.
The inventory of January, 1911, was being taken by defendant and a son-in-law of the plaintiff, when the defendant claims there was a suggestion made, or he had heard it rumored to the effect, that plaintiff claimed to own an interest in the store, and that at that time he suspended the taking of the inventory until the plaintiff, who had been called away to serve on a grand jury, returned; and defendant claims that the plaintiff advised him that since he had been so liberal in his accommodation of the defendant he thought he should have a small interest in the business; but the plaintiff says that about that time the defendant commenced negotiating with him for the purchase of plaintiff's interest in the business. However, at or near that time the plaintiff and defendant disagreed as to their respective rights, and this litigation followed.
Mrs. Clark was a witness for plaintiff, and testified that she spoke to the defendant about buying the store, and he said he was not able to do so, but that he could find a buyer; that she asked him who the buyer was, and he said he did not like to tell, because the buyer did not want to be known in the business, but that the next time she talked with him she said she believed she knew who the buyer was, saying she believed it was the plaintiff; and that defendant confirmed her belief. There were two witnesses, however, who testified that subsequent to this time and shortly thereafter Mrs. Clark stated in their hearing that the defendant was the purchaser of her store; and there were two other witnesses, who were formerly customers of Mrs. Clark, who testified that she had advised them that she had sold her stock of goods to the defendant, which she does not deny. Two other witnesses testified that defendant told them soon after the purchase of the stock of goods that the plaintiff was a partner or interested in the business.
In August, 1907, a representative of a harvester company, having learned of the sale of the Clark store, went to Southwest City to investigate the standing of the purchaser, and in the course of his investigations went to the plaintiff in his bank and made inquiries of him as to the financial standing of de...
To continue reading
Request your trial