Torbert v. Jeffrey

• Decision Date: 29 March 1901
• Citation: 61 S.W. 823,161 Mo. 645
• Parties: TORBERT v. JEFFREY, Appellant
• Court: Missouri Supreme Court

61 S.W. 823

161 Mo. 645

TORBERT v. JEFFREY, Appellant

Supreme Court of Missouri, First Division

March 29, 1901

Appeal from Saline Circuit Court. -- Hon. Richard Field, Judge.

Affirmed.

Stewart Taylor for appellant.

(1) Plaintiff's cause of action, as stated in the petition and as shown by the evidence, did not entitle him to the appointment of a receiver, because it nowhere appears in the pleadings or evidence that plaintiff had any title to the property itself, or that he had any lien thereon, or that the property itself constituted a special fund to which plaintiff had a right to resort in satisfaction of his claim, and for the further reason that no fraud, or imminent danger, if the immediate possession was not taken by the court, was shown. Moreover, the property was not within the jurisdiction of the court. (2) The court had no jurisdiction to appoint a receiver. The mere filing of a petition therefor did not confer such jurisdiction, especially when it had no jurisdiction of the res. Miller Bros. v. Perkins, 154 Mo. 629. (3) If no partnership existed there was nothing to authorize a court of equity, in a suit for dissolution of partnership, to lay hold of the business, enjoin it, and proceed to wind it up, and the refusal to set aside the restraining order was error and an abuse of judicial power. (4) There was no partnership. Clifton v. Howard, 89 Mo. 192; Ashby v. Shaw, 82 Mo. 76; Donnell v Harshe, 67 Mo. 170; Musser v. Brink, 68 Mo 242; s. c., 80 Mo. 350; Newspaper Co. v. Farrell, 88 Mo. 594; Thompson v. Holden, 117 Mo. 118; McDonald v. Matney, 82 Mo. 358; Newberger v. Friede, 23 Mo.App. 631; Kelly v. Gaines, 24 Mo.App. 506; Lockart v. Forsythe, 49 Mo.App. 654. (5) The contract was one of agency and not partnership. Wiggins v. Graham, 51 Mo. 17; Kelly v. Gaines, 24 Mo.App. 506; Hedges v. Wear, 28 Mo.App. 575; Newspaper Co. v. Farrell, 88 Mo. 594; Darling v. Potts, 118 Mo. 506.

Wallace & Wallace for respondent.

(1) The fact that certain of the partnership property was stored in the warehouse of the Armour Packing Company, in Kansas, did not deprive the court of jurisdiction to appoint a receiver of the partnership effects. This is so for several reasons. This property was under the control of the defendant Jeffrey, who presumably had warehouse receipts therefor. All of the parties were before the court. There were other partnership effects besides the apples stored in Kansas. High on Receivers (3 Ed.), sec. 44, p. 33, also sec. 164, p. 145; Chaffee v. Quidnick Co., 13 R. I. 442; Railroad v. Railroad, 46 Vt. 792; Sercomb v. Catlin, 128 Ill. 556; Langford v. Langford, 5 L. J. (N. S.), ch. 60. (2) The relation of the plaintiff and defendant in this venture was clearly that of partners, and the remedy adopted by the plaintiff was the only one that was open to him. Lengle v. Smith, 48 Mo. 276; Scott v. Caruth, 50 Mo. 120; Plumber v. Troast, 81 Mo. 425; Bank v. Altheimer, 91 Mo. 190; Wifferman v. Stacey, 80 Wis. 345; Ellensworth v. Parker, 62 Ill.App. 650; Carey v. Caldwell, 86 Mich. 570; Farr v. Morell, 53 Hun 31; Dane v. Kempster, 146 Mass. 454; Miller v. Price, 20 Wis. 117; Strauss v. Cann, 83 Ill.App. 497; Setchell v. Foster, 106 Mass. 42; Wright v. Davidson, 13 Minn. 449; Pierce v. Shippee, 90 Ill.App. 371; Couch v. Woodruff, 63 Ala. 446; Emanuel v. Draughn, 14 Ala. 303; Clark v. Ridley, 49 Cal. 105; Robbins v. Lazwell, 27 Ill. 365; Marx v. Stein, 11 La. Ann. 509; Musier v. Trumpbour, 5 Wend. (N. Y.), 275; 1 Bates on Partnership, secs. 18, 28 and 35; Holme v. Hammond, L. R., 7 Exch. 233; Pooly v. Driver, 5 Ch. Div. 458. (3) Even if this should be considered by the court not to be a partnership in the general sense of that term, still, the plaintiff, under the authority of Seymour v. Freer, 8 Wallace, 202, had such an interest in the property involved as entitled him to the relief sought in the petition.

BRACE P. J. Marshall, J., absent.

OPINION

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, for 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 one dollar 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, the agreement was 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 can not 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...