State ex rel. Overstreet v. Finn

• Decision Date: 14 March 1882
• Citation: 11 Mo.App. 546
• Parties: STATE OF MISSOURI, EX REL. J. W. OVERSTREET ET AL., Appellant, v. JOHN FINN ET AL., Respondents.
• Court: Missouri Court of Appeals

11 Mo.App. 546

STATE OF MISSOURI, EX REL. J. W. OVERSTREET ET AL., Appellant,

v.JOHN FINN ET AL., Respondents.

St. Louis Court of Appeals, Missouri.

Mar. 14, 1882.

1. Participation in the profits and losses of a firm does not necessarily vest in the participator such an interest in the firm property as will subject it to seizure under execution for his individual debts.

2. The presumption arising from a participation in the profits and losses may be rebutted by proof of the real agreement between the partners and of facts showing that the debtor partner had no interest in the firm property.

3. If there is nothing from which it can be ascertained what the trial court's findings of fact were, the giving of an erroneous declaration of law is ground for a reversal.

APPEAL from the St. Louis Circuit Court, THAYER, J.

Reversed and remanded.

DYER & ELLIS, for the appellant: Farris had no interest in the partnership property at the time of the levy of the execution, of which fact the sheriff had due notice, and hence the levy was tortious.-- Gillham v. Kerone, 45 Mo. 487; Rapp v. Vogel, 45 Mo. 529. One who shares the profits and losses of a firm is not, therefore, necessarily a partner in the property of the firm.-- Donnell v. Harshe, 67 Mo. 173; Musser v. Brink, 68 Mo. 249; Dwinell v. Stone, 31 Me. 386; Conklin v. Bartow, 43 Barb. 438; Blanchard v. College, 22 Mass. 151.JOHN F. WIELANDY and R. W. JONES, for the appellant.

E. T. FARISH and H. W. BOND, for the respondents: Where one party furnishes capital and another contributes services upon agreement to share equally in the net profits of the undertaking, they thereby become partners; this community in the profits, in the absence of a special contract as to the losses, makes them partners both in the profits and losses of the adventure.-- Maclay v. Freeman, 48 Mo. 234; Lengle v. Smith, 48 Mo. 276; Whitehill v. Shickle, 43 Mo. 537. An execution against one member of a firm may be levied upon his entire interest in the firm assets, or upon his interest in any portion thereof.-- Wiles v. Maddox, 26 Mo. 77.

LEWIS, P. J., delivered the opinion of the court.

Defendant Finn, as sheriff of the city of St. Louis, to satisfy an execution in his hands, in favor of W. E. Storer and others against W. D. Farris, levied upon and seized a horse and buggy and certain money and office furniture in possession of the partnership firm of Overstreet, Farris & Co., composed of the relators in this proceeding and the said Farris. The relators, claiming that the property was exclusively theirs, and that Farris had no leviable interest therein, instituted this suit against the sheriff and the sureties on his official bond, for the wrongful seizure. The court, sitting as a jury, rendered judgment for the defendants.

There was testimony tending to show that Farris, the execution debtor, had put no money or property into the firm, but went into it under an agreement with the other members, that he should contribute to the business his time, labor, and influence, and should be entitled to one-fifth part of the net profits of the concern; that he drew out his share in the profits as fast as they accrued, and frequently overdrew his account, which was overdrawn when the levy was made, so that his interest in the partnership, at that time, was merely nominal, and of no value whatever. It appears that the relators, in order to avoid an interruption of their business, gave to the sheriff a certified check for $675, whereupon the officer released the several articles of property levied upon, and made his return on the execution, setting forth the levy and release, with the further fact that he had levied upon the check described--the amount of which was sufficient to cover the amount due on the execution. There was some contradictory testimony as to the terms upon which this check was handed over, but it sufficiently appears that the check was, in some sort, to represent...