Spurlock v. Wilson

• Decision Date: 06 November 1911
• Citation: 142 S.W. 363,160 Mo. App. 14
• Parties: SPURLOCK v. WILSON.
• Court: Missouri Court of Appeals

142 S.W. 363

160 Mo. App. 14

SPURLOCK v. WILSON.

Springfield Court of Appeals, Missouri.

November 6, 1911.

1. PARTNERSHIP (§ 53)—EXISTENCE OF RELATION—EVIDENCE.

Evidence held to sustain a referee's finding that the parties had made a partnership agreement and acted upon it up to a certain date, and that thereafter, and during the time in which the property in controversy was purchased the plaintiff had no interest in the business.

2. PARTNERSHIP (§ 17)—WHAT CONSTITUTES THE RELATION.

Except where parties have held themselves out as copartners, and credit has been extended to them as such, when in fact they were not partners between themselves, a partnership is a relation between two or more competent persons resulting from a contract, and only exists where the parties intend to enter into a contract of partnership.

3. PARTNERSHIP (§ 71)—AGREEMENT—CONSTRUCTION.

A contract of partnership must be construed according to the manifest intention of the parties, and must be determined by the contract itself and the surrounding circumstances.

4. PARTNERSHIP (§ 68)—PARTNERSHIP REAL ESTATE—REAL ESTATE CONSIDERED AS PERSONAL PROPERTY.

Where persons engage as partners in the exclusive business of buying, selling, and dealing in real estate, the real estate owned by the firm is, in equity and for partnership purposes, to be treated as personalty; but to transform real estate into personalty, so as to create a partnership therein, the intention to do so must appear so clearly as to fairly exclude every construction under which the property can retain its character as real estate.

5. PARTNERSHIP (§ 5)—RELATION—COMMON OWNERSHIP OF PROPERTY—PROFITS.

The common ownership of property does not of itself create a partnership between the owners, though they may use it for the purpose of making gains; and they may, without becoming partners, agree among themselves as to the management and use of such property and the application of the proceeds therefrom.

6. PARTNERSHIP (§ 53)—ACTION—SUFFICIENCY OF EVIDENCE—PURCHASE OF REAL ESTATE.

Evidence, in an action to establish a partnership right in real estate, held insufficient to sustain a finding that a partnership agreement was entered into by the parties when the real estate was purchased.

7. FRAUDS, STATUTE OF (§ 73)—REAL PROPERTY—AGREEMENT TO CONVEY.

An oral agreement by defendant to convey to plaintiff a one-half interest in real property upon the payment of half of the purchase price is within the statute of frauds.

8. PARTNERSHIP (§ 26)—ILLEGAL CONTRACTS —EFFECT.

Where parties enter into an illegal partnership agreement to purchase officers' and court fees, and bid in land at a sheriff's sale for taxes, and each of the parties contributes one-half of the money therefor, and the lots are subsequently sold, and defendant, on a settlement, receives a certain amount more than he is entitled to, but it is not shown that any money derived from the purchase or discounting of fees was used in payment for such lots, the plaintiff is entitled to recover such amount.

Appeal from Circuit Court, Greene County; James T. Neville, Judge.

Action by John A. Spurlock against George B. Wilson. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions.

A. H. Buchanan and Woodruff & Luster, for appellant. Fred. Stewart and G. A. Watson, for respondent.

GRAY, J.

Plaintiff alleged in his petition that on or about January 1, 1905, he and the defendant entered into a partnership contract, for the purpose of buying, selling, and dealing in real estate, and to buy officers' and court fees; that by the terms of the agreement each party was to furnish an equal amount of money, time, and labor, and to bear the expenses and losses equally, and to share likewise in the profits; that the said partnership purchased and owns real estate purchased by the firm with firm money and for firm purposes.

The petition describes a number of tracts of land which, it is alleged, were purchased under said arrangement and belong to the partnership. In the tracts so described is a piece of property in the city of Ava, Mo. The petition further alleged that no settlement had been made of the partnership affairs, and prayed for the appointment of a referee and an accounting.

The defendant answered, claiming to own the town property, and denying that plaintiff had any interest therein. The answer further admitted the common ownership of the parties in certain other tracts described in the petition, but denied under oath that he entered into a partnership with plaintiff, as alleged.

Arthur M. Curtis was appointed referee, and in due time heard the evidence and filed his report. The referee found that in 1905 plaintiff was the recorder of deeds of Douglas county, and defendant was the circuit clerk for said county, and that they entered into an oral agreement to purchase all the sheriff's, printers', and other fees in tax suits against lands in Douglas county, the defendant to do the clerical work, and the plaintiff to furnish necessary data for bringing suits, and after the sales to divide the net proceeds between them equally; that in case of a loss each was to share the same equally; that many of the tracts sold under tax judgments failed to bring enough to cover the fees and taxes, and the parties hereto purchased said tracts, and later sold them and divided the money; that the deeds to most of the tracts so bought were taken in the name of the defendant, though some few were taken in the name of plaintiff, but in each instance they were jointly interested, and after the sales divided the proceeds equally; that this agreement continued, and the parties so acted and dealt under the same, until January, 1907, when both went out of office, and at that time they made complete settlement of all tax suits that had been brought and lands sold, but there remained three tracts in which both were interested; that neither party had accounted to the other for the half of said sales.

The referee further found that after January, 1907, all tax suits were brought by defendant alone, and that plaintiff had no interest in them, nor in any of the lands that were bought in by the defendant after such time. The referee further found that in December, 1907, plaintiff and defendant jointly entered into an agreement to purchase, and did in said month purchase, the lot in the city of Ava, paying therefor the sum of $1,000; that the defendant paid, of that amount, $600 in cash, and the parties executed their joint note for the remainder, and which was paid by the defendant, and that the deed to said property was taken in the name of the defendant; that after the purchase the parties occupied the property with offices, and contributed equally for the repairs, and they so occupied said property until February, when this suit was brought; that about the time the suit was brought plaintiff offered to pay defendant one-half the amount he paid for the lot, but defendant refused to accept the same.

In addition to the lands purchased at sales for taxes, and the town lot, the parties purchased two other tracts. One was a 4-acre tract, and the title was taken in the name of both parties. The other was a 160-acre tract, and the deed was made to the defendant, but each one of the parties paid, at the time of the purchase, one-half of the purchase price.

In his conclusions of law, the referee found that the parties were partners in the purchase of the fees in the tax suits and the purchase of the lands at tax sales; that the contract for the purchase of the town lot, the 4-acre tract, and the 160-acre tract, above mentioned, were partnership contracts; and that the parties were acting as partners when the lands were purchased.

The defendant filed exceptions to the report of the referee, which were sustained in part, but judgment was rendered, declaring that the parties each had one-half interest in the three tracts just mentioned. In due time defendant filed his motion for new trial, which was overruled, and he has brought his cause to this court.

The single question on this appeal is the correctness of the judgment, decreeing that the parties are joint owners of the town lot. The plaintiff alleged in his petition that the partnership was for the purpose of "buying, owning, handling, and dealing in real estate, and to buy officers' and printers' and court fees;" that the partnership was entered into January 1, 1905, and ended about February 20, 1909. The referee found that the partnership at the time it was formed, was limited to the purchase of fees in tax suits, and in interest in lands purchased at tax sales; that the parties acted under the agreement until January, 1907; and that since said time the plaintiff has had no interest in any of said...