Tamblyn v. Scott

• Decision Date: 06 March 1905
• Citation: 85 S.W. 918,111 Mo.App. 46
• Parties: HARRY TAMBLYN, Appellant, v. ADAM SCOTT et al., Respondent
• Court: Kansas Court of Appeals

85 S.W. 918

111 Mo.App. 46

HARRY TAMBLYN, Appellant, v. ADAM SCOTT et al., Respondent

Court of Appeals of Missouri, Kansas City

March 6, 1905

Appeal from Jasper Circuit Court.--Hon. J. D. Perkins, Judge.

REVERSED AND REMANDED.

Cole Burnett & Williams for appellant.

(1) Instruction numbered 1 given at the request of Brintlinger and Hodge does not properly declare the law. The contract and evidence show that the operation of the mine was a joint venture to be conducted on joint account, the net profits which were to be equally divided between Scott on the one hand and Brintlinger and Hodge on the other. Torbert v Jeffrey, 161 Mo. 655; Corey v. Cadwell, 86 Mich. 570, 49 N.W. 611; Rahl v. Parlin and Orendoff Co., 64 S.W. 1007. (2) Plaintiff's instruction numbered 5 should have been given by the court. Bank v Altheimer, 91 Mo. 195. Actual participation in the profits as principal creates a partnership as between the parties and third persons, whatever may be their intention in that behalf, and notwithstanding the dormant partner was not expected to participate beyond the amounts of the profits. Berthold v. Goldsmith, 65 U.S. 536, 24 How. 536; Ward v. Thompson, 63 U.S. 330, 22 How. 330; Brandon & Dreyer v. Conner, 117 Ga. 759, 63 L.R.A 260. The law as declared in instruction numbered 7 has met the views of this court and of the Supreme Court. Freeman v. Hemenway, 75 Mo.App. 616; Snyder v. Burnham, 77 Mo. 52. (3) The trial court should have given plaintiff instruction numbered 8. A partnership as to third person may be shown by facts which would not prove a partnership inter se. Bissell v. Ward, 129 Mo. 452; Phillips v. Samuel, 76 Mo. 657; Huyssen v. Lawson, 90 Mo.App. 82; Selby v. McCollough, 26 Mo.App. 66.

Thomas Dolan for respondents.

(1) Even if there was error in instructing the jury, if the verdict is for the right party, it should be affirmed. (2) The very contract shows it was not a partnership contract, and the court simply declared that the contract was not a contract of partnership, and this declaration of law was correct. Hughes v. Ewing, 162 Mo. 295; Hdw. & Iron Co. v. Harrison, 89 Mo.App. 154; Hazel v. Clark, 89 Mo.App. 78. It is apparent from the contract and the conduct of the parties that it was not their intention that the written contract should constitute a contract of partnership. Mackie v. Mott, 146 Mo. 230. (3) The petition alleged a partnership. A partnership not being proven only Adam Scott is liable because he made the purchases. Price v. Hallett, 138 Mo. 561; Schultze v. Steele, 69 Mo.App. 614.

OPINION

ELLISON, J.

This is an action on account for fuse, blasting powder, etc., used in mining lead and zinc ore in Jasper county. The judgment in the trial court was for plaintiff against defendant Scott, but for the other defendants, Brintlinger and Hodge. Plaintiff appealed. The items of the account were purchased by Scott and the sole question we need to consider is, whether Brintlinger and Hodge were partners of Scott in the mining operation to carry on which the purchases in the account were made.

Brintlinger and Hodge were the owners of a lease of the ground upon which the mining was done, and they and Scott entered into a written contract whereby it was agreed, in substance, that when Scott complied with certain agreements specified in the contract he was to become owner of a half interest in the mining property. The agreement of Scott was to sink a shaft, which, at the time of the agreement, had been sunk seventy-eight feet, to a lower depth, "down to a second run or level of ore, which would be about forty-five feet, as drill record shows ore. If a shallower depth and the shaft having at least a three-foot sump sufficient to work the ore out, it will then be accepted by Brintlinger and Hodge, and the one-half interest in the above described lots and all other articles described will then be earned and turned over by proper transfer to" Scott or his assigns. The agreement was further that Scott should pay for all work and material and to sink the shaft spoken of at his own cost.

The best we can make out of this strangely worded agreement is that Brintlinger and Hodge agreed that when Scott sunk the shaft to the second level of forty-five feet, or less, "if pay ore" should be struck, then Scott had earned his one-half interest.

Defendants' first instruction declared to the jury that the contract itself did not...