Sunkyong Intern., Inc. v. Anderson Land & Livestock Co., 86-1924

• Decision Date: 29 October 1987
• Docket Number: No. 86-1924,86-1924
• Citation: 828 F.2d 1245
• Parties: SUNKYONG INTERNATIONAL, INC., Appellee, v. ANDERSON LAND & LIVESTOCK COMPANY, a/k/a Anderson Land and Livestock International and Anderson Land and Livestock, Stanley E. Anderson; Don Rose, Don Rose d/b/a Sac River Ranch, Don Rose d/b/a Rose Cattle Company; Elizabeth Daley Anderson; Stanley E. Anderson and Elizabeth Daley Anderson, alleged statutory trustees of Anderson Land and Livestock Company, Inc., Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1245

828 F.2d 1245

9 Fed.R.Serv.3d 107

SUNKYONG INTERNATIONAL, INC., Appellee, v. ANDERSON LAND & LIVESTOCK COMPANY, a/k/a Anderson Land and Livestock International and Anderson Land and Livestock Stanley E. Anderson; Don Rose, Don Rose d/b/a Sac River Ranch, Don Rose d/b/a Rose Cattle Company; Elizabeth Daley Anderson; Stanley E. Anderson and Elizabeth Daley Anderson alleged statutory trustees of Anderson Land and Livestock Company, Inc., Appellants.

No. 86-1924.

United States Court of Appeals Eighth Circuit.

Submitted April 13, 1987.

Decided Sept. 4, 1987.

Rehearing Denied Oct. 29, 1987.

John G. Newberry, Springfield, Mo., for appellants.

Richard I. Fine, Los Angeles, Cal., for appellee.

Before ROSS, Circuit Judge, HENLEY, Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.

JOHN R. GIBSON, Circuit Judge.

Stanley and Elizabeth Anderson appeal from a jury verdict in favor of Sunkyong International's claim against them for breach of contract. The dispute between Sunkyong and the Andersons arose from an agreement to deliver a number of cattle to Sunkyong for shipment to South Korea. The Andersons contend that the district court ¹ erred in 1) submitting the question of Elizabeth Anderson's liability on the contract to the jury because Sunkyong did not show her to be a partner or joint venturer with Stanley Anderson; 2) submitting Sunkyong's contract claim to the jury because the contract was conditioned on an "illusory provision," acceptance of the subject cattle by inspectors for a third party; 3) directing a verdict against the Andersons as statutory trustees of Anderson Land & Livestock Co., a forfeited corporation, because the corporation had never been properly served with process and was not before the district court; and 4) admitting certain evidence. We affirm the judgment of the district court in all respects.

Stanley Anderson is a livestock broker, dealing primarily in cattle. He testified that he transacts business under various names including Anderson Land & Livestock, Anderson Land & Livestock International, and Anderson Land & Livestock Co., Inc. The latter name--Anderson Land & Livestock Co., Inc.--was also used by a Missouri corporation Stanley Anderson organized in 1980. Anderson Land & Livestock Co., Inc. was owned by Stanley Anderson, and its directors and officers were Stanley and Elizabeth Anderson. It forfeited its corporate charter in early 1982.

In the summer of 1982, Sunkyong accepted a bid to provide 4,400 Charolais heifers to the National Livestock Co-Operative Federation of Seoul, South Korea (NLCF). Sunkyong entered an agreement on November 23, 1982, with Stanley Anderson to purchase 2,200 Charolais heifers from him for resale to the NLCF. This agreement was signed by Anderson and contains the statement "Mr. Stanley Anderson, personally and as president of Anderson Livestocks [sic] Co. guarantees against all risks included first payment for the owner of stock farm which might occur before loading of cattles." Pltf's. Exh. 47. Representatives of Sunkyong testified at trial that the parties to the agreement understood that the cattle were to conform with the NLCF's invitation to bid, including the requirement that the cattle pass an inspection by agents of the NLCF prior to shipment to Korea.

Under the terms of their agreement, Sunkyong advanced $700,160 to Anderson for the purchase of 2,800 head of cattle. By the late summer of 1983, Anderson had supplied some 1,093 head of cattle to Sunkyong, worth, according to Sunkyong's witnesses, $393,480. The NLCF inspectors, however, rejected the remaining cattle Anderson proposed to sell to Sunkyong. Sunkyong's witnesses testified that these cattle were weak, sick, underweight, and afflicted with pinkeye. Anderson's witnesses testified that these cattle were healthy and met the export specifications imposed by the United States Department of Agriculture. One witness testified that the inspectors rejected the cattle because Anderson's agent refused to bribe them at a rate of $5 per head. The rejected cattle were eventually sold elsewhere.

In March 1984, Sunkyong brought suit against Stanley Anderson, his agent cattle grower, and Anderson Land & Livestock Co., Inc. for breach of contract, fraud, and money had and received. Anderson counterclaimed against Sunkyong for wrongful refusal to accept the tendered cattle. Sunkyong subsequently amended its complaint to join Elizabeth Anderson individually as a defendant and later again amended the caption of the complaint, pursuant to court order, to reflect that Stanley and Elizabeth Anderson were being sued as statutory trustees of the forfeited Anderson Land & Livestock Co., Inc.

After a three-day trial, the jury returned a verdict in favor of Sunkyong on its contract claim for $422,520. The jury further found against the Andersons on their counterclaim. The district court also directed a verdict in favor of Sunkyong on its claim against the Andersons as statutory trustees. At the time it entered the directed verdict, the court stated that it was doing so based on its earlier order deeming certain requests for admission directed to the corporation admitted for failure to respond. The Andersons moved for vacation of the order directing the verdict, or for a new trial, on the ground that the corporation was never served with process nor was properly before the district court and, thus, could not have "admitted" anything. Elizabeth Anderson also moved for judgment notwithstanding the verdict or for a new trial on the ground that Sunkyong had failed to establish that she was a partner or joint venturer with her husband. The Andersons jointly moved for judgment n.o.v. contending that the contract claim should not have gone to the jury because the agreement with Sunkyong was conditioned on an "illusory provision," the acceptance of the cattle by the NLCF inspectors. The district court refused to grant any of the Andersons' post-trial motions. This appeal, raising the same issues, followed.

I.

The Andersons first contend that Sunkyong failed to make a submissible case against Elizabeth Anderson and that the district court erred in submitting the contract claim against her to the jury. They argue that Mrs. Anderson's connection with Anderson Land & Livestock was too tenuous to meet the requirements of Missouri partnership law and impose joint liability on her with her husband. Thus, they conclude that the district court should have granted Mrs. Anderson's motion for a directed verdict or her motion for judgment notwithstanding the verdict.

In evaluating the district court's disposition of Mrs. Anderson's motions, we are mindful that a directed verdict or judgment n.o.v. properly may be entered only where all the evidence points one way and is susceptible of no reasonable inferences sustaining the position of the non-moving party. Brown v. Syntex Labs., Inc., 755 F.2d 668, 671 (8th Cir.1985). We consider the record in the light most favorable to Sunkyong, which prevailed before the jury, we assume that all conflicts in the evidence were resolved by the jury in Sunkyong's favor, and we assume as proved all facts which Sunkyong's evidence tended to prove. Gilkerson v. Toastmaster, Inc., 770 F.2d 133, 136 (8th Cir.1985); Dace v. ACF Indus., 722 F.2d 374, 375-76 (8th Cir.1983); Cleverly v. Western Elec. Co., 594 F.2d 638, 641 (8th Cir.1979). So viewed, we conclude that the evidence in the record does not point all one way and that the district court did not err in refusing to grant Mrs. Anderson's motions.

The Uniform Partnership Law, adopted in Missouri, defines partnership as "an association of two or more persons to carry on as coowners a business for profit." Mo.Rev.Stat. Sec. 358.060.1 (1978). The Partnership Law sets forth a number of rules to be used in determining the existence of a partnership, including, inter alia:

(2) Joint tenancy, tenancy in common, tenancy by the entireties, joint property, common property, or part ownership does not of itself establish a partnership, whether such coowners do or do not share any profits made by the use of the property;

(3) The sharing of gross returns does not of itself establish a partnership, whether or not the persons sharing them have a joint or common right or interest in any property from which the returns are derived;

(4) The receipt by a person of a share of the profits of a business is prima facie evidence that he is a partner in the business, but no such inference shall be drawn if such profits were received in payment:

* * *

* * *

(b) As wages of an employee * * *.

Id. Sec. 358.070 (1978).

The Missouri courts have developed additional principles to aid in this determination. The partners, of course, must have entered into an agreement, but this may be implied. Brotherton v. Kissinger, 550 S.W.2d 904, 907 (Mo.Ct.App.1977). The intention of the parties is the primary criterion in determining whether a partnership exists. Grissum v. Reesman, 505 S.W.2d 81, 85 (Mo.1974). Merely "helping out" in a business is not in itself sufficient to prove the existence of a partnership. Brotherton, 550 S.W.2d at 907. This is particularly true in "husband and wife" cases, because the "very nature of the relationship of the parties tends to submerge adversity of individual interests." Shawneetown Feed & Seed Co. v. Ford, 468 S.W.2d 54, 56 (Mo.Ct.App.1971); see Fish v. Fish, 307 S.W.2d 46, 52 (Mo.Ct.App.1957) ("acts and circumstances between spouses may not have the same significance * * * as the same acts and circumstances between strangers might have"). The sharing of profits raises a presumption that a partnership exists, Grissum, 505 S.W.2d at 85; cf. Mo.Rev.Stat. Sec. 358.070(4) (receipt of share of profits prima facie evidence of partnership), and this presumption becomes conclusive when there are rights of management in each partner. Grissum, 505 S.W.2d at 85; Brotherton, 550 S.W.2d at 907. The Missouri courts also fail to...