Springer v. Cabell

• Decision Date: 31 July 1847
• Parties: SPRINGER v. CABELL.
• Court: Missouri Supreme Court

10 Mo. 640

SPRINGER

v.CABELL.

Supreme Court of Missouri.

July Term, 1847.

ERROR TO CHARITON CIRCUIT COURT.

DAVIS, for Plaintiff.

ABELL, for Defendant. 1. The letter introduced by plaintiff, and objected to by defendant, was properly admitted as evidence, tending to prove defendant's indebtedness; but if it was improperly admitted, defendant waived it, in not moving for a new trial on that ground. 2. The instruction asked, was properly refused. It asked the court to withdraw from the jury the whole case, when the facts to be determined, were proper for the consideration of the jury. Hughes v. Ellison, 5 Mo. R. 110. 3. If the instruction asked was properly refused, and the objection to the evidence in the letter waived, then the court was called on to decide no other point of law, until after the verdict; and after verdict it is too late to raise an objection, that the subject-matter of the suit was a partnership transaction. See Smith v. Allen, 18 Johns. R. 245; Waldo v. Russell, 5 Mo. R. 387. 4. If a partnership in land can be formed, it must be in writing, or it cannot be enforced; it is within the statute of frauds. But it is contended, that a partnership cannot be formed in land, subjected to all the rules of law, governing ordinary partnerships. See Baker v. Wheeler, 8 Wend. 505; Coles v. Coles, 15 Johns. R. 159 and 160. But if such a partnership could be made, in this case, only one matter was to be settled between the parties and the matter can be settled at law. See Musier v. Trombour, 5 Wend. 274; 8 Mo. R. 574, Byrd v. Fox. 5. In this case, the most that can be contended for, is that there was a verbal agreement between the parties to form a partnership in land, which was to be reduced to writing by them. The verbal agreement was wholly rescinded by the act of defendant, in refusing to execute the written agreement. But before the whole matter was rescinded, one advances to the other money for a specific purpose, which he misapplies and converts to his own use;--whether partners or otherwise, damages can be recovered in a suit at law for the money, &c. See Gow on Partn. 75, 76; Dunham v. Gillis, 8 Mass. 462; Thomas v. Pyke, 4 Bibb, 418; Byrd v. Fox, 8 Mo. R. 574.

NAPTON, J.

Cabell brought an action of assumpsit against Springer, the declaration containing one general count for work and labor, money lent, &c. The general issue was pleaded. The cause was submitted to the Circuit Court. The plaintiff read in evidence a letter from Springer, dated St. Louis December 10, 1844, in which he told plaintiff, that if he continued his suit against him, he would never pay him one cent, but if he would withdraw it, he would get him a tract of land worth government price. Charles Cabell, a witness for the plaintiff, testified, that he was present at a conversation between plaintiff and defendant, from which he learned, that they had entered into an agreement to be partners for the term of five years, in the buying and selling of lands; that they were to be equally interested in the profits and losses attending said business; that in pursuance of this agreement they took a trip to Virginia; that during said trip, plaintiff advanced to defendant some money to purchase a tract of land in Chariton county, near Brunswick; that this land was to be purchased in the name of the plaintiff; that defendant had purchased the land with his horse, saddle and bridle, and the money advanced by plaintiff, and had taken the deed to Abraham Springer, a brother of defendant; that the consideration for the land was estimated at about $150 or $160. At the time of this conversation, the...