Wilson v. Todhunter

• Decision Date: 25 November 1918
• Docket Number: 3
• Citation: 207 S.W. 221,137 Ark. 80
• Parties: WILSON v. TODHUNTER
• Court: Arkansas Supreme Court

207 S.W. 221

WILSON v. TODHUNTER

137 Ark. 80

No. 3

Supreme Court of Arkansas

November 25, 1918

Appeal from Chicot Chancery Court; Z. T. Wood, Chancellor; affirmed.

STATEMENT OF FACTS.

This suit was instituted by the appellee against the appellants. The appellee alleged in substance that he and his father and the appellants were tenants in common of 2,805 acres of land in Chicot County; that when purchased, the land consisted of old and abandoned fields and woodlands; that the appellee went upon the lands to improve, manage and operate same; that the owners were to share equally in profits and losses; that the lands were so operated until the 1st of January, 1915 when it was agreed that the lands should be divided; that after the lands were divided, the appellee rented about 100 acres of the cleared lands of the appellants' for which he was to pay the sum of $ 1 per acre; that the appellants were due the appellee certain amounts for the years 1912 1913 and 1914, which amounts are exhibited in an account set forth in the complaint, and for the sum of $ 15 for an abstract furnished appellants and paid for by the appellee that certain personal property was in the hands of the appellee belonging to the partnership, and that upon an accounting, the appellants would be due the appellee the sum of $ 2,766.85 including principal and interest to date of suit, which amount should be credited with one-half the personal property in appellee's hands belonging to the partnership. Appellee prayed that the partnership be dissolved; that after deducting one-half of the proceeds of the personal property in his hands belonging to the partnership, that he have judgment for the balance found due him from the appellants and that the same be declared a lien upon their lands and that unless paid, the lands be sold etc.

The appellants answered admitting that they were owners in common with the appellee by purchase of the lands mentioned in his complaint, and that they continued as such until the year 1915. They specifically denied the allegations of the appellee's complaint that they had ever entered into a partnership agreement by which they were to share equally the profits and losses incident to the operation of the lands. They specifically denied that after the partition of the lands, that they had contracted to rent the appellee their part for the sum of $ 1 per acre for the years 1915 and 1916 and they set up by way of counterclaim that the appellee was indebted to them for one-half the value of certain personal property in his possession as the appellants' tenant that the appellee occupied the lands belonging to the tenants in common in the year 1914 without any contract, and that he was due the appellants one-half of the fair rental value of the lands for that year, amounting to the sum of $ 345; that the appellee contracted to pay the appellants the sum of $ 150 as rent for their part of the lands for the year 1915; that the appellants rented to the appellee their undivided half interest in the 2,805 acres for the years 1912 and 1913 by a verbal contract, under the terms of which the appellee agreed to pay the appellants one-half of all sums he had collected off of the whole place less 20 per cent off of the first $ 1,000 and less 10 per cent on all sums above $ 1,000; that the appellee had never made a full statement to the appellants of the business for those two years although often requested so to do, and that appellants had reason to believe that the appellee was indebted to them for the business of those years; that the sum of such indebtedness could only be ascertained by appointment of a master to state an account. Appellants prayed that the master be appointed to state an account between the parties for the years of 1912 and 1913, and that they have judgment for the sum of $ 345, their portion of the rents for the year 1914, and $ 150 for the rents for the year 1915 with interest on these sums to date of the decree, and for all general and equitable relief.

It will be observed that the only issue raised by the complaint and answer is whether or not a partnership existed between the appellee and appellants in the operation of the lands purchased by them as tenants in common during the years 1912, 1913 and 1914, and if there was a partnership whether or not the appellants at the termination thereof, were indebted to the appellee in the sum for which he sued, and whether appellee was indebted to appellants for the rent of 1915. The testimony is exceedingly voluminous. We have reviewed it all, but it would unnecessarily extend this opinion to set it forth and comment upon it in detail. We shall therefore only state what we regard as the salient features of the evidence bearing upon the issue as to whether or not there was a partnership.

Ryland Todhunter testified as follows: "My son, Neill Todhunter, had charge of it in 1912, 1913 and 1914. Our arrangement was that Neill was to take charge of the land and operate it, making necessary improvements, and if the place was operated at a loss, that is, that if the expense of operation was greater than the income, each of us four, that is, Neill, the two Wilsons and myself were to bear such loss equally. If the place made a profit we were to divide that profit equally. There was a further agreement that if operated at a profit, the Wilsons were to pay Neill a per cent. of their profit to recompense him for looking after their interest. When we began operations in Arkansas the place was a wilderness. The Wilsons and myself prevailed upon Neill to take charge of the Arkansas property. He reluctantly consented to do so, as to go there he was compelled to give up a lucrative position here, in farming his land and his extensive mule business, in which he was not only making money but pleasantly and comfortably situated. He gave up his home and business and began the improvement of the place there, and under his management it has been brought from a wilderness to its present state of productiveness. He has given it all his time and I am sure his very best endeavor to make it profitable for all concerned. The situation remained the same as to the conduct of the business of the Arkansas lands during the years from the time we started work until the property was divided, and before the division was made, in some of our conversations, they, (the Wilsons) complained about the cost of operating the place being more than the income, and that they did not want to spend any more money on it, and this attitude of theirs brought about the division of the property afterwards made."

Neill Todhunter testified in part as follows: "Q. What agreement if any did you have with the Wilsons as to making the improvements and developments and the cultivation and operation of same?" A. "Our agreement was verbal. We had an agreement that every man was to pay his part of it. S. N. Wilson one-quarter and M. D. Wilson one-quarter. Father said for me to pay his half; to take it and run it as far as he was concerned. Ryland Todhunter was my father. I paid one-half the expenses up to June 1, 1912, and the Wilsons paid the other half and it was settled up to then and they owed me a balance then of $ 310. There was no set time for these settlements. We settled when I went to Missouri. I took the books and we settled there." Again he says: "We were to run this property, the Wilsons to pay one-half of the expenses and I was to pay the other one-half of the expenses and improvements and they were to share one-half of the proceeds of the profits and losses and I to share one-half of the profits and losses, and in addition they did promise me, I think it was 20 or 25 per cent. of their part of the net profits for my services for them, but there never was any profits those years as the boll weevil ate us up."

The testimony on behalf of the Wilsons was substantially as follows: That in November, 1907, Neill Todhunter proposed to go to Arkansas and take charge of the plantation if each owner would pay one-quarter of his expenses and one-quarter of any cost necessary to repair some of the houses and to repair some fences on his place. This was agreed upon and Neill Todhunter went and took charge of the property. On January 30, 1907, a settlement was made with plaintiff for the 1908 rental and a new contract was made by which it was agreed that Todhunter was to again look after the renting of the land for all the owners for the year 1909. It was agreed that Todhunter would rent the Wilson half of the land to the tenants who had rented the Todhunter half. Todhunter was to arrange with some merchant to guarantee to furnish provisions to those tenants who could not furnish themselves and the Wilson brothers were to stand good for one-half of any provisions guaranteed which tenants did not pay for out of their crops. It was decided about how much extra fencing was to be put up and not over two houses built if needed. Also a few mules were to be bought if tenants needed them.

On December 3, 1909, Todhunter and the Wilsons made a settlement for the rents and expenses of that year and Todhunter paid to the Wilson brothers for their half of the net earnings the sum of $ 102.40, but when he (Todhunter) returned to Arkansas on January 17, 1910, the Wilsons paid him $ 125, being more than they had received from him on January 3rd. For the year 1910 a new contract was made between the parties, the terms of which were the same as that for the year 1909, it being agreed again that one or two houses would be built if needed and such extra fencing be done as was necessary. It was agreed in the contract for 1910 that Todhunter would rent all four shares of the land to the same tenants and divide in fourths the rents collected by him for the year 1910, and...