Vickers v. Arthur

• Decision Date: 25 June 1928
• Docket Number: No. 16350.,16350.
• Citation: 9 S.W.2d 812
• Parties: VICKERS v. ARTHUR.
• Court: Missouri Court of Appeals

9 S.W.2d 812

VICKERS v. ARTHUR.

No. 16350.

Kansas City Court of Appeals. Missouri.

June 25, 1928.

Rehearing Denied July 9, 1928.

Appeal from Circuit Court, Jackson County; Brown Harris, Judge.

Action by Cecil Vickers against John M. Arthur and another. Judgment for plaintiff, and defendant named appeals. Affirmed.

Paxton, O'Reilly & Paxton, of Independence, and Chas. A. Stratton, of Kansas City, for appellant.

August E. Kramer, of Independence, for respondent.

WILLIAMS, C.

This suit was originally filed on April 29, 1926, before a justice of the peace, and was for the balance due for services rendered. Suit was brought against John M. Arthur and his son, Herschel Arthur, as partners. Partnership was denied under oath. A verdict was rendered in the circuit court for the sum of $500. After an unsuccessful motion for a new trial, the defendant John M. Arthur appeals.

The size of the verdict is not attacked. The first point is one of fact, or, more accurately stated: Was there substantial evidence tending to show a partnership between John M. Arthur and Herschel Arthur, his son? As against a demurrer, the evidence is taken most favorably to the plaintiff. Englehart v. Serena et al. (Mo. Sup.) 300 S. W. 268.

Mrs. Herschel Arthur testified in regard to the arrangement as follows:

"Now, do you know what the arrangement was between your husband and his father at the time you went there? A. Well, they were to be partners. We was to move in there, and look after and take care of and run the farm. He was sickly and in ill health. We lived at Raytown and were running my father's farm. And he was sickly and didn't do no good on the farm, and he begged my husband to come there, and he said he would put up a house for us to live in and they would be partners. At the time Cecil Vickers came there, the principal work was dairy and farming there on the ground. They were sending the milk to the Sheffield Dairy. The money from this milk was divided between Mr. John M. Arthur and my husband. To the time of my husband's death, there was no change in their relationship, they continued in business as they had from the start."

Again, Lester Arthur, son of Herschel Arthur, testified as follows:

"I lived at home with my parents during the time Cecil Vickers worked there. I have heard John M. Arthur speak of my father as his partner. I am 17 years old. * * * Mr. J. M. Arthur received the money from the milk sold there. The money was split between him and my father; I don't know what was their agreement; anything that was purchased for use on the farm was taken out of the check before it was divided. Cecil and I worked together, milking the cows. John M. Arthur told us about cleaning the cow barn and about feeding the cattle. His health was not very good, and he was not out much working around the place, in the winter time."

We think this testimony sufficient to show intention on the part of John M. Arthur and Herschel Arthur to form a partnership. As to the consummation of the partnership, the evidence shows that respondent, Cecil Vickers, was...