Torbert v. Jeffrey

• Court: Missouri Supreme Court
• Writing for the Court: Brace
• Citation: Torbert v. Jeffrey, 161 Mo. 645, 61 S.W. 823 (Mo. 1901)
• Decision Date: 12 March 1901
• Parties: TORBERT v. JEFFREY.

61 S.W. 823

161 Mo. 645

TORBERT v. JEFFREY.

Supreme Court of Missouri, Division No. 1.

March 12, 1901.

PARTNERSHIP — LOSSES — EQUITY — JURISDICTION.

1. Where A. furnished B. with money to buy apples at a certain price, B. to put in his time and certain contracts of purchase, and the two to share the net profits equally after all expenses were paid and A. reimbursed for his outlay, a partnership existed between them, though nothing was said as to the losses.

2. A court of equity is not deprived of jurisdiction of a suit between partners to wind up a partnership business by the fact that a part of the partnership property is stored in another state.

Appeal from circuit court, Saline county; Richard Field, Judge.

Suit by William Torbert against Robert Jeffrey. From an order refusing to revoke an interlocutory order appointing a receiver, defendant appeals. Affirmed.

Stewart Taylor, for appellant. Wallace & Wallace, for respondent.

BRACE, P. J.

This is an appeal from an order of the circuit court of Saline county refusing to revoke an interlocutory order of said court appointing a receiver. The action in which the order was made was for the settlement of a partnership account, and the property in the possession of the defendant, of which a receiver was appointed, was alleged partnership property. The main question in the case is whether, as to that property, the plaintiff and defendant were partners. The only direct evidence as to the alleged contract of partnership is that of the parties themselves, taken by deposition. That of the defendant was first read. His testimony on that subject is as follows: "Q. Mr. Jeffrey, I will get you to state what you consider the contract between you and Mr. Torbert to be. A. How do you mean that? Q. Just what you consider that contract as to buying those apples at Orrick, Missouri, to be between you and Mr. Torbert. A. Why, in the first place, he came to me, and said he had some contracts in Orrick, Missouri, or in the neighborhood, for so many apples from certain parties; and after a lot of talk about it, and him asking me four or five times to go in, I consented to advance him not to exceed $1.10 a barrel, and whatever net profits there was after all expense was paid, he was to have one-half of it. Q. Your contract was, then, that the pay he was to get was to be half what net profits that would be realized after all expenses were paid? A. Yes, sir. He had a contract with those parties for $1.00 a barrel, and he said he would put in his time. * * * Q. How were they billed when they were shipped to Kansas City by him? A. To Jeffrey Commission Company. Q. And were stored immediately at Armour's? A. At Armour's; yes, sir. Q. Was anything ever said between you and Mr. Torbert at that time with reference to his having any say-so with reference to the apples or their sale? A. Yes, sir; he had no right. Q. Just state what was the agreement with reference to the handling of the apples between you and Mr. Torbert. A. That I had absolute say about it until they were all sold, and to give him half of the proceeds after all the expenses were taken out on a certain amount of them. Q. Now, did he ever attempt to interfere with the management of the apples prior to the bringing of the suit, — prior to Mr. Wallace coming down to see you a few days before the suit was brought? A. Never. Q. Did he ever, prior to Mr. Wallace's visit above referred to, intimate in any manner a desire to have a voice in the management and control of these apples? A. Never. * * * Q. In the conversation in making this contract, what was said with reference to Mr. Torbert having any say as to the management of these apples? A. At the commencement of it? Q. Yes. A. At the commencement of it I said I would advance not to exceed $1.10 a barrel. He to draw on me, when the apples were loaded, not to exceed $1.10 per barrel for the apples. Draw on me sight draft, bill of lading attached. That I would handle the apples to the best advantage. That he was to devote his time, free of cost, for his interest in the apples; and he agreed to it. When he returned after the thing was all over, I asked him if he could not sell some of them, and he says, `You have got your money into it, and you can do the best you can with it.' * * * Q. Now, you used the expression that Mr. Torbert was to give his time free, and superintend the packing of the apples, for his interest in the apples? A. Yes, sir. Q. Do you mean that Mr. Torbert was to have an interest in the apples or in the profits? A. In the profits. Q. If I understand you, it was that agreement that he was to be interested in one-half of the net profits, should there be any, in the apples? A. But that was not in the apples. Q. And he was not to have any voice in the management or sale of the apples? A. No; no." The testimony of the plaintiff on that subject is as follows: "Q. Now, I will get you to state what the contract between you and Mr. Jeffrey was, or, rather, state fully the conversation relating thereto. A. You mean previous to the time — the day — we made the contract? I cannot state exactly the conversation, — all of it; but Mr. Jeffrey knew that I had some apples bought down there, and he had spoken about it several times; not in any trade though, as I understood it, at least. But he knew I had some apples bought there, and the morning that this agreement was made I was in his office, and he asked me how many apples I had down there, and I told him I did not know; that I had those four orchards; and he then wanted to know again what I was to give for them, and I told him what I was to pay for them, — showed him the contracts I had. `Well,' he says, `you have got a pretty good thing there;' and he wanted to know why I did not buy more. I told him that I did not like to take hold of any more from the fact that I probably had all that I could handle, or something to that effect, and then he said that he would like to have ten thousand barrels, and he says: `If you have not the money to handle them, how would you like to go in partners with me? You put in what you have got, and I will furnish all the money to pay for them and pay for the handling of them.' I told him that it was owing to what kind of an arrangement we would make, and he said that he would put his money against my time, and we would go partners on the deal. Q. Is that all? A. Well, we made the arrangement then to go down there. Q. Well, now you have been stating the preliminary discussion, I will ask you to state now exactly what the contract was. A. The contract was that he was to furnish the money, and to pay for the apples, and to pay for the packing, and that I was to have half interest in the business after he got the amount of money he put in it. Q. That was expressly understood, was it, that he was to get out what money he put in first? A. Well, he did not say first. He said after he got what money he had in out. That was the agreement. He was to have his money, and then I was to have half of whatever was remaining. Q. Well, that meant first. Did you not understand it that way? A. No, I did not understand it to be first. Q. Now, I will ask you to state again what the contract was with reference to Mr. Jeffrey getting the money he advanced out of the apples. A. Well, the contract was that I was to have a half interest in it after he got the amount of money he put in the apples. He did not specify the time he was to get it, or anything about that. Q. Well, you used the word `after,' did you not, which meant that you were to have a half interest in the apples after he got his money out? A. Yes, he was to get his money that he put into them. Q. And then you were to be equal partners? A. Yes. Q. You were not to be equal partners before he got his money out of them, were you? A. Well, it was not specified in that way whether we would, or anything about that. Q. Just state again in your own way. A. He was to have his money out of the apples. Of course, there is no dispute about that. Q. Now, were you to share in the apples or in the profits? A. That was stated just as the talk was. I do not know how you would interpret it. That is the conversation. That is the agreement, just as I stated it, that his money, of course, was to be paid back to him. Q. Well, now, have you ever had any idea that you were to share in the apples themselves? A. Why, after he got his money out of them, I certainly would share in the apples after his money came out of that, and I consider myself a sharer. * * * Q. Was anything said in the original contract about where the apples should be stored? A. I believe there was talk about it. He talked some about the Kansas City Ice & Cold-Storage Company, but I believe he said that he had some trouble with them, and he would see Armour. Q. Was anything said about your having any voice in the management of the apples prior to getting his money out of them? A. It was not specified anything about his getting his money out of them. He did not specify anything. Q. Did you say that Mr. Jeffrey was to get his money out of the apples, and then, after his money was gotten out, that you were to be partners in what there was left? A. Why, he said nothing about his money in speaking about them. The word `after' was not used. He was to have his...