Tregea v. Mills

• Decision Date: 25 May 1903
• Citation: 11 Wyo. 438,72 P. 578
• Parties: TREGEA, ET AL., v. MILLS
• Court: Wyoming Supreme Court

72 P. 578

11 Wyo. 438

TREGEA, ET AL., v. MILLS

Supreme Court of Wyoming

May 25, 1903

On petition for rehearing, August 3, 1903.

Rehearing Denied 11 Wyo. 438 at 457.

ERROR to the District Court, Uinta County, HON. DAVID H. CRAIG Judge.

The facts are stated in the opinion.

Affirmed.

J. H Ryckman, for plaintiffs in error.

There is no evidence to support the decision of the trial court and the decision is clearly contrary to law. If it is clear that the verdict is contrary to law and there is no evidence to sustain it, it is the duty of the court to set it aside. (Marshall v. Rugg (Wyo.), 44 P. 700; Edwards v O'Brien, 2 Wyo., 493.) And whether there is any evidence to support a judgment is a question of law, and where the bill of exceptions discloses all the evidence, and the Supreme Court, on an examination thereof, finds that all the facts which the evidence in any degree tends to prove, will not sustain the judgment, it must be reversed. (Wooley v. Staley, 39 O. St., 354.)

Furthermore, this is a suit in equity, and in equity appeals the Supreme Court will review questions of fact and decide for itself whether the evidence is sufficient to support the decision. (Miller v. Cook, 135 Ill. 201; Chase v. Hubbard, 153 Mass. 91; Yesler v. Hockstettler, 2 Wash. 349; 30 P. 898; 2 Pl. & Pr., 402.)

And will render such judgment as the lower court ought to have rendered. (R. S., 4265; Columbus, &c., Co. v. Simpson, 5 O. St., 251; Ins. Co. v. Church, 21 O. St., 499; Wagner v. Ry. Co., 38 O. St., 32.)

Neither a court nor a jury have any power to render a decision or verdict wholly unsustained by legal evidence. (Hammond v. Jewett, 22 Neb. 359; Helfreich v. Ogden City R. R. Co., 7 Utah, 186.) If court errs in applying the law to the facts, a new trial will be granted. (Yeoman v. Lasley, 40 O. St., 339; Marshall v. Rugg, 44 P. 700.) The appellate court will always examine the facts so far as is necessary to determine questions of law based upon them. (2 Pl. & Pr., 405, and cases cited.)

Where the conclusions of law are entirely unsupported by the evidence, the judgment must be reversed. (Duncan v. Wyatt, 48 Mo. App., 659; 3 Cyc., 351, and cases cited.)

It was not contended by counsel for the defendant in error, nor was the idea entertained by the court for a moment, that the testimony in the case taken together does not prove a partnership. Indeed, it was not even claimed there was any credible testimony to the contrary. The defendant himself admitted that he has always participated in the profits when there were any that were derived from the land in controversy. And it is a well established rule of law that participation in the profits of a partnership raises a presumption and makes a prima facie case of partnership. (Parker v. Canfield, 37 Conn. 250; Way v. Evans, 97 U.S. 3; Kelly v. Morris, 6 Pet., 622; 1 Jones Ev., 48-54.)

The case, therefore, before the court is, was the District Judge right when he held that the articles of partnership existing in parol, the Statute of Frauds intervenes, and the action cannot be maintained. Our Statute of Frauds, Section 2953, provides that every agreement or contract for the sale of real estate or the lease thereof for more than one year shall be void unless such agreement, or some note or memorandum thereof, be in writing and subscribed by the party to be charged therewith. It cannot be contended successfully that this statute applies. (Bates v. Babcock, 95 Cal. 479.)

The settlement of partnership accounts, and the conversion into money of the assets of the partnership, whether real or personal, and their division among the partners, has always been one of the functions of a court of equity, and that court never stops to inquire into the source of the title of such assets, or in whose name they are held. The question has frequently arisen in actions for the division of the proceeds after a sale under such an agreement, and it has been invariably held that the statute of frauds is no defense thereto. (Bruce v. Hastings, 41 Vt. 380; 98 Am. Dec., 592; Benjamin v. Zell, 100 Pa. St., 33; Trowbridge v. Wetherbee, 11 Allen, 361; Babcock v. Read, 99 N.Y. 609; Coward v. Clanton, 79 Cal. 23; 21 P. 359; Reed on Statute of Frauds, Sec. 727; Byers v. Locke, 93 Cal. 493.)

The same principles are applicable in an action to subject land which has become a portion of the assets of such a partnership to a sale under the directions of a court of equity, with a distribution of the proceeds thereof according to the rights of the individual partners. (Dale v. Hamilton, 5 Hare, 369; Richards v. Grinnell, 63 Ia. 44; Bunnel v. Taintor, 4 Conn., 568; Hunter v. Whitehead, 42 Mo. 524; Bissell v. Harrington, 18 Hun., 81; Holmes v. McCray, 51 Ind. 358; Coward v. Clanton, supra.)

The first question to be determined by the court was whether there was a partnership, and that fact could be shown by general evidence, and being shown, nothing remains for the court to do except to declare the lands in controversy to be partnership lands and to confirm the sale made by the receiver. (Bates v. Babcock, supra; Shaeffer v. Blair, 149 U.S. 249; Williams v. Gillis, 75 N.Y. 201; Speyer v. Desjardines, 144 Ill. 641; Chester v. Dickerson, 54 N.Y. 1; Fountain v. Menard, 53 Minn. 443; Ludlow v. Cooper, 4 O. St., 1; Bunnell v. Taintor, 4 Conn., 568; Buffum v. Buffum, 49 Me. 108; Fairchild v. Fairchild, 64 N.Y. 471; Knott v. Knott, 6 Ore., 142; 2 Lindley Part., 643; Tenney v. Simpson, 37 Kan. 353; 2 Story Eq., Sec. 1207; Knauss v. Cahoon, 7 Utah 185.)

There are three tests available to ascertain whether the real estate in dispute is partnership property: (1) Was it the intention of the parties that it should be partnership property? (2) Was it acquired with partnership funds? (3) Was it essential and was it used for the purposes and objects of the partnership?

Any one of these elements being proved, stamps the land as partnership property. In this case all three of these things concur, and thus our case is three times as strong as it need be to entitle the receiver to this order of sale and a judgment for the plaintiffs in error.

As against creditors, the question is whether the lands have been bought with partnership funds and for partnership purposes, but as between the partners the question is one of intention only, which may be manifested by acts and declarations and established by parol evidence. (Collner v. Grieg, 137 Pa. St., 606; Murrel v. Mandelbaum, 85 Tex. 22; Dupuy v. Leavenworth, 17 Cal. 262; Shanks v. Klein, 104 U.S. 18; 26 L., 635.)

Real estate purchased for partnership purposes with partnership funds and used as part of the stock in trade is to be considered to every intent as personal property; not only as between the members of the partnership and their creditors, but also between the surviving partner and the representative of the deceased. The holder of the legal title is but a trustee for the partnership. (Pierce v. Trigg, 10 Leigh, 446; Tiedeman Real Prop., Sec. 245; 1 Parsons Cont., 152; 1 Bates Part., Sec. 281; Green v. Green, 1 O., 535; 13 Am. Dec., 642; McCormick's App., 57 Pa. St., 54; 98 Am. Dec., 191; Goldthwaite v. Janney, 102 Ala. 431; Bank v. Miller, 27 L. R. A., 449.)

Did the court have power to order a sale of the partnership property in the hands of the receiver before the trial of the issues? As a general rule it is clear that the court has power to order a sale of the property in the hands of its receiver whenever it considers such course necessary for the best interests of all. (2 Story Eq. Jur., Sec. 1216a; McLane v. Placerville, 66 Cal. 606; First National Bank v. Shadd, 121 U.S. 74; Hoyt v. Sprague, 103 U.S. 613; Mellen v. Moline Iron Works, 131 U.S. 352.)

While it is true that a partnership exists only where the parties intend to enter into it, such intent is a legal intent and may exist in the teeth of an express stipulation that the parties do not intend to form a partnership. (Jones v. Davis, 60 Kan. 309; Spaulding v. Stubbings, 86 Wis. 255; Goldsmith v. Eicbold, 94 Ala. 116.) In all cases where rights of third parties are not involved the contract, whether express or implied, will be liberally construed so as to effectuate the actual understanding and do justice among them. (22 Ency. L. (2d Ed.), 27.)

The mere sharing of profits in the absence of any explanation that they are shared otherwise than as partners is sufficient to establish the partnership. (Meehan v. Valentine, 145 U.S. 611; Harvey v. Shields, 28 O. St., 319; Beecher v. Bush, 45 Mich. 188; Richardson v. Hughitt, 76 N.Y. 55; Eastman v. Clark, 53 N. H., 276; Coward v. Clanton, 122 Cal. 451; Hodgson v. Fowler, 24 Colo. 278; Webster v. Clark, 34 Fla. 637; Dame v. Kempster, 146 Mass. 454.)

Counsel for defendant in their brief have raised for the first time in this case the point that plaintiffs allege that the partnership set out in the petition was a special partnership, and that a special partnership under Section 2491 of the Revised Statutes could not be formed by parol, and that the partnership claimed having been formed by parol, the petition states no cause of action.

But counsel for defendant fail to call the court's attention to Section 4494, which provides that no special partnership is formed until the provisions of the five sections preceding are complied with. It, therefore, follows that if a partnership were formed at all, and the statute in relation to partnerships had not been complied with, the partnership is a general one, and the allegations of the petition clearly show that it was not a special partnership under the statute that was attempted to be alleged, but a general partnership for the special purpose of ranching and stock raising. The word "special," as used in the petition, has...