State ex rel. Jones v. Daues

• Decision Date: 01 February 1929
• Docket Number: No. 29034.,29034.
• Citation: 13 S.W.2d 537
• Parties: THE STATE ex rel. PAUL JONES, JR., and PAUL JONES v. CHARLES H. DAUES et al., Judges of St. Louis Court of Appeals.
• Court: Missouri Supreme Court

13 S.W.2d 537

THE STATE ex rel. PAUL JONES, JR., and PAUL JONES v. CHARLES H. DAUES et al., Judges of St. Louis Court of Appeals.

No. 29034.

Supreme Court of Missouri, Division No. 1.

February 1, 1929.

Certiorari.

WRIT QUASHED.

Jones, Hocker, Sullivan & Angert and Ralph T. Finley for relators.

(1) In establishing a conflict of opinions it is sufficient if it appears (a) that the opinion of the Court of Appeals runs counter to the decisions of the Supreme Court on the general principle of law announced, or (b) that such opinion announces a ruling contrary to that of the Supreme Court under a like or similar state of facts, or where the facts are analogous. State ex rel. v. Reynolds, 287 Mo. 169, 289 Mo. 506; State ex rel. v. Allen, 294 Mo. 214; State ex rel. v. Trimble, 250 S.W. (Mo.) 384; State ex rel. Vulgamott v. Trimble, 300 Mo. 92. In determining whether there is a conflict and whether the facts are analogous, the relators are entitled to every reasonable inference to be drawn from the record in their favor. State ex rel. Schaffer v. Allen, 253 S.W. (Mo.) 768. (2) Under the facts recited by the Court of Appeals the evidence is insufficient to establish a partnership, and even if sufficient to raise a presumption that a partnership relation existed, such presumption disappeared in the light of the undisputed evidence that the relators were to receive an interest in the equity in the building by taking shares in the stock of a corporation to be formed as compensation for their services in securing the finances agreed upon for the erection of the building. In holding such evidence sufficient to establish a partnership, the opinion is contrary to the following decisions of the Supreme Court: Thompson v. Holden, 117 Mo. 118; Musser v. Brink, 68 Mo. 249; Campbell v. Dent, 54 Mo. 333; Darling v. Buddy (Mo.), 1 S.W. (2d) 167; Fourth Nat. Bank v. Altheimer, 91 Mo. 195; Nugent v. Armour Packing Co., 208 Mo. 497; Canty v. Halpin, 294 Mo. 137; Ashby v. Shaw, 82 Mo. 80; Kellogg Newspaper Co. v. Farrel, 88 Mo. 597; Hughes v. Ewing, 162 Mo. 296; Miller v. Miller, 277 S.W. 926. (a) It does not follow that because the parties were to receive the equity in the building they were to share the losses, and in so holding, the opinion, on the facts, is contrary to the following decisions of the Supreme Court: Kellogg Newspaper Co. v. Farrell, 88 Mo. 597; National Bank of Commerce v. Francis, 296 Mo. 192; Wiggins v. Graham, 51 Mo. 20; Campbell v. Dent, 54 Mo. 333; Miller v. Miller, 277 S.W. (Mo.) 926; Mackie v. Mott, 146 Mo. 230; Darling v. Buddy (Mo.), 1 S.W. (2d) 163. (b) The evidence is wholly insufficient to show an intention to form a partnership. The agreement to furnish loans and receive an interest in the equity in the building when completed is insufficient to even raise a presumption of partnership, and in so holding the respondents contravene the following decisions of the Supreme Court: Kellogg Newspaper Co. v. Farrell, 88 Mo. 597; National Bank of Commerce v. Francis, 296 Mo. 192; Wiggins v. Graham, 51 Mo. 20; Miller v. Miller, 277 S.W. (Mo.) 926; Mackie v. Mott, 146 Mo. 230; Darling v. Buddy (Mo.), 1 S.W. (2d) 163. (c) In holding that the evidence established a partnership relation between the relators and Nixon & Keeley and Donaldson, the opinion overlooks the proposition that in this case the plaintiff cannot rely upon partnership by estoppel, but is required to furnish the same proof as is required to establish a partnership as between the partners themselves. Darling v. Buddy (Mo.), 1 S.W. (2d) 167; National Bank of Commerce v. Francis, 296 Mo. 192; Fuel Co. v. Brady, 202 Mo. 557. (3) The evidence establishes a complete case of equitable estoppel because of the agreement by the plaintiff to take second mortgage bonds, made prior to the division of the two projects, whereby the relators assumed obligations aggregating thousands of dollars, on the assumption that the plaintiff's account had been settled. The opinion assumes that the estoppel was complete but for the subsequent failure on the part of the Donaldson Court owners to furnish plaintiffs the second mortgage bonds. In holding that this abrogated the estoppel already incurred, the respondents contravene the following decisions of the Supreme Court, holding that the basis of an estoppel is not what one himself intends to do, but "depends rather upon what he has caused his adversary to do": Hayes v. Manning, 263 Mo. 46; Commerce Trust Co. v. Keck, 283 Mo. 223; State Bank v. Frame, 112 Mo. 513; McFarland v. McFarland, 278 Mo. 16; First National Bank v. Ragsdale, 171 Mo. 185; Hector v. Mann, 225 Mo. 245; Briscoe v. Callahan, 77 Mo. 136; Case Note, 10 A.L.R. 234-235.

Charles A. Lich for respondents.

The evidence is practically undisputed as to the partnership details. There is no dispute that these three interested parties got together with the idea of erecting an apartment house; that each interest was to perform a certain service; that the title to the property was held in the name of an employee of the Joneses, who held the title as trustee for all of the three interests; and that this trustee acted for and on behalf of the real parties in interest, executed mortgages and became obligated in other ways; and that when the building was completed, each of the three interests was to own an undivided one-third part of the property. There can be no question where two or more parties enter into an agreement whereby said parties acquire ownership of a business and agree to divide the profits and to suffer the losses that a legal partnership springs into existence. The courts have gone even farther and held that even though there is no definite agreement to become obligated for the losses where there is a joint ownership of the business or assets of the partnership, and an agreement to share the profits, it is presumed that the parties intend to share the losses. Torbert v. Jeffry, 161 Mo. 645; Minter v. Gidinsky, 228 S.W. 1075; Elmer v. Campbell, 136 Mo. App. 101; Dierks Lumber Co. v. Bruce, 239 S.W. 133.

RAGLAND, J.

This is an original proceeding in certiorari wherein relators seek to have quashed on the ground of conflict of decision the judgment and opinion of the St. Louis Court of Appeals in the case of J.A. Schaefer Construction Company, a corporation, appellant, v. Paul Jones et al., respondents, lately pending in that court on appeal from the St. Louis Circuit Court. The rulings and the facts on which they are based are disclosed by the opinion, which is as follows:

"Plaintiff brought this suit against the defendants to recover for labor performed in excavating for a garage building. The amount sued for was $2659.80, with interest. Defendants Nixon and Keeley, who are residents of the State of Illinois, were not served with process, and the suit as to them was dismissed. Defendant Donaldson was in default and judgment was directed against him by the court. There was a verdict and judgment against the defendants Paul Jones and Paul Jones, Jr. The defendants last named filed their motion for a new trial, and it was sustained by the court on the ground that an instruction in the nature of a demurrer, offered by defendants, should have been given. From this order and judgment plaintiff appealed.

"The petition alleges that defendants Nixon and Keeley are partners under the firm name of Nixon & Keeley Construction Company, and that all of the defendants were engaged in a partnership enterprise in the matter of building and erecting the Donaldson Court Apartments; that they were building the same as partners, and that each of the defendants was to receive an interest in the building when constructed and completed. Plaintiff further alleges that on or about November 5, 1922, having theretofore been engaged and employed by defendants Nixon and Keeley, it proceeded to excavate for a garage building for said apartments; that it performed the work and that the reasonable value of the services was the amount above stated; that the work was accepted by the defendants, but that they failed and refused to pay the bill.

"The answer of the defendants Paul Jones and Paul Jones, Jr., was a general denial, coupled with a specific denial of the allegations of a partnership, and a further plea to the effect that plaintiff is estopped from asserting any claim against these defendants by reason of the fact that it had agreed in writing with the defendant Donaldson to accept second mortgage bonds in payment of the account sued for.

"The first witness to testify for plaintiff was Clark Nixon of the firm of Nixon & Keeley, who had charge of the construction of the Donaldson Court Apartments located in St. Louis County. He testified that this building was started by Charles W. Donaldson, Paul Jones, Paul Jones, Jr., and Nixon & Keeley, and that there was in the beginning no written agreement between the parties, but that the oral agreement was that Donaldson was to do the engineering and supervise the work. Paul Jones and Paul Jones, Jr., were to handle the financing of the enterprise, and Nixon & Keeley, general contractors, had charge of the construction and the employment of sub-contractors; that all of the defendants met almost daily and conferred over the progress of the work. The title to the ground on which the building was being built was in an employee of the Paul Jones Realty Company. When the work was completed Nixon & Keeley were to receive one-third of the equity in the property, Donaldson was to receive one-third and the Joneses one-third. Paul Jones and Paul Jones, Jr., secured the money and furnished the loans on the building. Nixon testified that the bill of plaintiff was correct.

"On cross-examination he stated that the total cost of the Donaldson Court Apartment was about $750,000, and that the original plan to divide the equity in the property when the building was completed was later abandoned, because it had been estimated that the cost of...