Stoallings v. Baker

• Decision Date: 31 January 1852
• Citation: 15 Mo. 481
• Court: Missouri Supreme Court
• Parties: STOALLINGS v. BAKER & YOUNG.

15 Mo. 481

STOALLINGS

v.BAKER & YOUNG.

Supreme Court of Missouri.

January Term, 1852.

APPEAL FROM DAVIESS CIRCUIT COURT.

LEWIS, ABELL & STRINGFELLOW, for Appellant. The contract between plaintiff and defendants did not constitute a partnership inter se. There was no participation of profits or losses--no right to an account. Plaintiff could not make defendants account for sales of the lumber. He had no right to any money received from the sales of lumber, but only to one-half of the lumber, or to damages for its non-delivery. 1 Wash. C. C. R. 491; Story on Partn. 22, note 3; Gow on Partn. 153, 154; 3 Kent's Com. 25; Borman v. Bailey, 10 Vt. R. 171; Tomlin's Law Dict. Partners, 70; 3 U. S. Dig. 89, 47; 6 Vt. R. 119; 6 Watts & Serg. 140, 143; 14 Pick. 194.

RYLAND, J.

This was a suit by Stoallings against Baker & Young before a justice of the peace, for money arising on the sale of plank by defendants, which belonged to the plaintiff. The case was taken to the Circuit Court, by appeal. On the trial in that court, the plaintiff was non-suited. The facts of the case were, that a contract had been entered into between the plaintiff and the defendants, by which the defendants were to move their circular saw mill to the land of the plaintiff, in the river bottom near to the town of Gallatin, in Daviess county. The plaintiff was to furnish hay for the horses which were used to put the saw in motion; to board the hands and wash for them, and to furnish the logs to be sawed into lumber. The defendants, were the owners of the mill and the horses which they were to furnish; they were to provide the food for the horses, except hay, and to provide the necessary hands to keep the mill in operation, and were to saw the logs which were provided by plaintiff into lumber, which was to be divided, one-half to plaintiff and the other to defendants. Upon these facts, the Circuit Court decided (who tried the case without a jury) that the justice of the peace had no jurisdiction; that there was a partnership between the plaintiff and the defendants in the lumber sawed, and that the suit should have been brought for a settlement of the whole partnership concerns. To this opinion of the court the plaintiff excepted, and brought the case here by appeal.

The only question arises on the facts of the case, whether the court below properly held that they proved a partnership. This being the only point for the decision of this court, it becomes necessary to see what constitutes a partnership. Justice Story says, “every real partnership, so intended, between the parties themselves, imports ex vi termini a community of interest in the profits of the business of the partnership, that is to say, a joint and mutual interest in the profits thereof, or a community of profit. This is of the very essence of the contract; for, without this communion of profit, a partnership cannot in the contemplation of law exist.” Story on Partn. 22. Collyer expresses the doctrine in the following terms: “To constitute a partnership between the partners themselves, there must be a communion of profit between them. A communion of profit implies a communion of loss; for every man who has a share in the profits of a trade, ought also to bear his share of the loss. By a communion of profit is intended a joint and mutual interest in profit.” Collyer on Partn. book 1, ch. 9, § 1, p. 11.

Chancellor Kent says, “there must be a communion of profit to constitute a partnership as between the partners. They must not be jointly concerned in the purchase only, but jointly concerned in the future sale. A joint purchase, with a view to separate and distinct sale, by each person on his own account is not sufficient.” 3 Kent's Com. 25.

“The rule that all who participate in profits are liable as...