Wetmore v. Crouch

• Decision Date: 23 May 1899
• Citation: 51 S.W. 738,150 Mo. 671
• Parties: WETMORE v. CROUCH.
• Court: Missouri Supreme Court

51 S.W. 738

150 Mo. 671

WETMORE v. CROUCH.

Supreme Court of Missouri, Division No. 1.

May 23, 1899.

JOINT ADVENTURES — SHARING PROFITS — CONSTRUCTION OF CONTRACT — PLEADING — DRAWING CONCLUSION — RELEASE — PAYMENT OF PART OF DEBT.

1. In an action by plaintiff to recover her share of the profits which accrued in a venture entered into jointly by herself and defendant, the evidence showed that plaintiff advanced to defendant, at his request, $250, to be invested, for their joint interest, in options on certain real estate; that all that was said about a division of profits was that, if the venture was a failure, defendant was to refund half the money advanced, and, if profitable, both were to make considerable profit out of it; that plaintiff knew nothing about options, and intrusted all the business to defendant; that in subsequent conversations, and in their correspondence, it was understood by both parties that they had a joint interest in the business, but nothing was said at any time as to the share of each; that, in the numerous trades and transfers, defendant had part of the property put in plaintiff's name and part in his own name. Held, that plaintiff is entitled to recover one-half of the profits which accrued from the venture.

2. If facts stated in a petition are such that the law implies an agreement, the pleader may, after stating the facts, draw that conclusion, and such conclusion will not be construed to be the pleading of an express contract.

3. Where there is no express agreement as to the share that each is to have in the profits resulting from a joint venture, and the conditions are such that the law implies an agreement for an equal division, that implication is conclusive, and will not be changed by the interpretation that the parties by their actions seemed to put upon the contract.

4. The payment of a smaller sum than is unquestionably due, with no other element of accord in the transaction, is not a satisfaction of the debt, even though accepted as such at the time.

5. Where one party contributes the money, and the other the skill, for their joint benefit, in a venture, the law implies an equal division of the profits, in the absence of an express agreement.

Appeal from St. Louis circuit court; Rudolph Hirzel, Judge.

Action by Octavia Wetmore against James N. Crouch to recover her share of profits which accrued in a joint venture. There was a judgment for defendant, and plaintiff appeals. Reversed.

This is an action begun April 17, 1894, to recover the value of the plaintiff's share of the profits which she claims accrued in a venture entered into jointly by herself and defendant. The petition states, substantially: That in 1888, at the proposal of defendant, plaintiff advanced him $250 to purchase upon their joint account a half interest in an option on certain real estate near the city of St. Louis, with the understanding and agreement that the profits and losses of the venture should be shared equally between them. That the purchase was made by defendant, and afterwards sold by him to a real-estate corporation called the Kenwood Investment Company, whereby the defendant received in cash $3,700, and 260 shares of stock in the Kenwood Investment Company, worth $25 a share. That defendant represented to plaintiff that the 260 shares of stock were all that he had realized, fraudulently concealing that he had received $3,700. The defendant procured this stock to be issued in three certificates,—one for 40 shares, amounting to $1,000, face value, in his own name; one for 200 shares, face value $5,000, in plaintiff's name; and one for 20 shares, face value $500, also in plaintiff's name, — which two last-named certificates, plaintiff, at the request of defendant, transferred to defendant's wife, for the purpose of enabling defendant to handle them in the market for the joint benefit of plaintiff and defendant. That defendant sold all this stock May 9, 1889, and received in payment $2,100 in cash, and a house and lot in St. Louis, at a valuation of $4,000, the title to which he took in his wife's name. Thus, with the $3,700 above mentioned, defendant realized in all $9,800, of which $4,900 justly belongs to plaintiff, on which the defendant has paid her $650, and refuses to pay her more. Judgment for $4,250 and interest is prayed. The answer was a general denial and the statute of limitations. The reply was that this suit was brought within one year after a nonsuit in the same cause of action suffered by plaintiff.

Plaintiff, in her own behalf, testified, substantially: That she was a teacher in the public schools of St. Louis, and the defendant was the husband of her sister. In the spring of 1888 she loaned defendant $250, and took his note for the amount. Shortly afterwards he came to her, prepared to pay the note, and was willing to do so, but proposed to her that, instead of taking the money back, she allow him to invest it for their joint interest in an option on what was known as the "Benton Farm." There was some discussion about the risk, in which he said there was not much risk, and he thought they would make a good deal of money out of it. Then she agreed to let him use the money in that venture, and he gave her a receipt in these words, "Received of Miss Octavia Wetmore $250, to be used on the Benton-farm option," and she gave him back the note she had held. After the note was returned to him, and the receipt had been given, he said, "We are liable to make a good deal of money out of this, and I would like to limit you;" and just before he left he said, "If we don't succeed, I will refund half of this $250." That is all that was said on the subject of sharing the profits and losses. The next meeting between plaintiff and defendant was in August, 1888, when he came to her and informed her that he and Mr. Greenwood, who owned the other half, had sold the option at a net profit of $13,000, to be paid in stock of the Kenwood Investment Company. Plaintiff told him that he had done well, to which he replied that he would rather have had money. Proceeding, the witness said: "Then he asked me if I wanted money. I told him I didn't need any money, and he took out the $250 that I had given him to pay for the option, and said, `Well, take this any way, and I will have some certificates of stock made out.' He did not at that time say anything about the receipt which he had given me for the $250. A day or two after that he brought up some certificates of stock. One was made out for $5,000 worth of stock in my name, being for 200 shares; another for $500 worth of stock, being 20 shares, also in my name; and one for $1,000 worth of stock, being for 40 shares, in his own name. And he then asked me to transfer the 200 shares of stock to his wife, and I did so. I had not had at this time any experience in dealing either in options or real estate. I did not know anything about dealing in options. It had been Mr. Crouch's business for some time to deal in options and real estate generally. He had been in the business two or three years. It was at Mr. Crouch's request that I indorsed the certificate for 200 shares of this stock to his wife, and he then took the certificate. After he had taken the certificate he said: `Now, I wish you would give me that receipt, because, if you should die, it might be found among your effects, and people would wonder.' He then took the receipt and the certificate for 200 shares of stock away with him. He held the certificate until the next spring, either in April or May, 1889, when I asked him why he did not dispose of the stock. He replied that he had tried to, but had not succeeded. A short time after this he came to me and said he could exchange it for a house and lot and some money, and asked me what I thought of it. I told him, if that was the best he could do, to do so. He said the stock would have to be pooled (that is, his stock, — mine and his wife's); and he afterward informed me that the stock had been exchanged for a house and lot and some money, — I think, about $2,200. By `his wife's stock,' I mean the certificate for 200 shares which I transferred to her at his request the previous August. He had the deed to this house and lot made out in my name. He put into the pool the two certificates made out in my name, the one in his own name, and one for ten shares in the name of Mr. Spencer. For all this stock he got the house and lot and about $2,200 in money. He said he would retain about $1,700 of this money and gave me about $400, and he did give me $430 of it about May 9, 1889. [At this point appellant offered in evidence the deed to this house and lot from Redmond Cleary to herself, dated May 9, 1889, which recited a consideration of $4,000.] I afterwards authorized him, in writing, to collect the rents. This was done at his request. A few days afterwards he requested me to go to the office of Mr. Greenwood and execute a deed for this house and lot to his wife, which I did. [This deed was also offered in evidence, and was dated May 10, and acknowledged May 17, 1889, and recited a consideration of $4,500.] Some time after August 22, 1889, I wrote Mr. Crouch a letter, asking him for a settlement, and telling him `that, as I had furnished the money for the option, I was entitled to at least half the proceeds, as I was to bear half the losses.' To this letter he made no reply. I again wrote him on the same subject, and received a postal card in reply, dated February 14, 1890, in which he excused himself for not calling on me, but promised to see me in a few days." In a letter written by respondent to appellant, dated September 18, 1888, and read in evidence, he refers to this $6,500 worth of stock, and says: "Mr. G. wishes to know to-day what I would take to-day for my $6,500 worth of stock, and, as you are the owner of a...