Snyder v. Burnham

• Decision Date: 31 October 1882
• Parties: SNYDER v. BURNHAM et al., Appellants.
• Court: Missouri Supreme Court

77 Mo. 52

SNYDER

v.BURNHAM et al., Appellants.

Supreme Court of Missouri.

October Term, 1882.

Appeal from Dade Circuit Court.

AFFIRMED.

E. J. Smith, L. W. Shafer and D. P. Stratton for appellant Stevenson.

D. A. DeArmond and B. G. Thurman for respondent.

NORTON, J.

This suit was commenced upon an account, in the Dade county circuit court, to recover from defendants the sum of $209.25, and interest, for goods sold and delivered and money paid to defendants and persons in their employ while said defendants, as alleged, were engaged as partners in the mining business. Defendant Burnham made default, and Stevenson answered, denying every material allegation of the petition and each and every item of the account. The cause was tried by the court without the intervention of a jury, and judgment rendered for plaintiffs for the sum of $212.40, from which defendant Stevenson has appealed to this court, and assigns as the chief grounds of error the action of the court in giving and refusing instructions, and also that there was no evidence that defendants were partners.

1. PARTNERSHIP.

The evidence tended to show that prior to September 25th, 1876, defendant Burnham and one Van Dreaser had an interest in a pump-shaft on the land of the Dade County Mining & Smelting Company, which was being sunk for lead ore; that about the date above mentioned, defendant Stevenson bought the interest of said Van Dreaser in said shaft. Defendant Burnham testified that from the 25th day of September, 1876, to February 27th, 1879, he and Stevenson were partners in running said pump-shaft, that he had no talk with Stevenson about his coming into the shaft and no arrangement was made between them except he said “he had bought out Van Dreaser and would help bear expenses;” and that they were unable to prosecute the work without aid, and that the mining was carried on under the name of Burnham & Co.; that he arranged with plaintiffs to pay the hands in their employ in working said shaft out of the store upon his, Burnham's orders, and that he was to give plaintiffs warrants issued by the Dade County Mining & Smelting Company as advances on mineral, as so much cash for goods furnished as aforesaid; that the account sued on was for goods so furnished and cash in excess of said warrants, and was correct. Stevenson in his evidence admits the purchase on the 28th day of September of Van Dreaser's interest in said pump-shaft; but says that he and Burnham did not begin work on the pump-shaft till the 2nd day of October, 1876; while he worked on the Burnett lot Burnham worked on the pump-shaft. He further stated that they were to furnish two hands on the pump-shaft and the Mining & Smelting Company were to allow them $9 per week for running the engine. The Mining & Smelting Company were to pay the expenses of running the shaft. Burnham told witness from time to time that he was keeping the time of the hands and getting warrants and settling with them. Some of the men complained to witness that they had to go to plaintiffs for pay. Witness told them they could get their pay at the office. Witness further testified: “We were mining for lead under the Mining & Smelting Company. The pump-shaft was regarded as a test, and the company were anxious to have it pushed. We were not able to bear the entire expense, and the company made these advances to aid us; they were to be repaid by us out of the mineral if we should get any out of the shaft, all except for the services of the engineer.” Mr. Taggart, president of the smelting company, testified that he drew...