Freeman v. Hemenway

75 Mo. App. 611, 1898 Mo. App. LEXIS 479

• Court: Missouri Court of Appeals
• Decided: May 16, 1898
• Status: Published

Opinions

Smith, P. J. —

statement. This is an action to recover damages for the conversion of certain mining machinery, tools and appliances. There was a trial by the court without the intervention of a jury which resulted in judgment for plaintiff, and defendants appealed. The court as requested by defendants made a special finding of the facts in the case and stated its conclusions of law therein. And since the defendant’s abstract does not set forth the evidence adduced at the trial we must presume the facts to be as the court found them. Our examination of the case will therefore be restricted to the conclusions of law stated by the court.

It appears from the finding of facts made by the court that Diveley, Jarvis and plaintiff as a partnership owned the personal property, for the conversion of which this suit was brought, and employed the same in operating a certain zinc mine of which Diveley and Jarvis were licensees; that plaintiff owned a one fourth interest in said personal property and the other three fourths interest was owned by the other partners; that Diveley and Jarvis sold their interest in the mine together with said personal property of the partnership to the defendants; that the defendants entered into the exclusive possession of said personal property and have and thereafter retained the same, claiming to be the exclusive owners thereof and denying to plaintiff any right or interest therein as partner or tenant in common or otherwise, whereby the whole of plaintiff’s interest therein had become lost to him; that the defendants had converted and appropriated to their own use all of said mining machinery including plaintiff’s one fourth interest therein; that the plaintiff’s interest in said property was reasonably worth $300 on the twentieth day of February, 1892.

From these facts so found the conclusion of the court was that the plaintiff was entitled to recover from defendants on account of the conversion of plaintiff’s said interest in said property the sum of $300 with interest thereon at six per cent per annum since the date of the institution of this suit amounting to the total sum of $389.

Psa™oEfpa“tn¿r>s cotenan'ts: con-The sale by Diveley and J arvis of their entire interest in the said personal property to the defendants had the effect to ipso facto dissolve the partnership relation then existing between Diveley, Jarvis and plaintiff. 1 Oollyer on Part., 151. The defendants, the purchasers by virtue of their purchase, became cotenants with the plaintiff in respect to the ownership of the property. Diveley and Jarvis had the right to sell their own interest and the defendants had the right to purchase same. The mere fact that the defendants purchased the interest of the former did not of itself subject them to any liability to the plaintiff, unless, as the court found was the fact, they disregarded the plaintiff’s rights as cotenant by an appropriation of the property to their own use. McCoy v. Hyatt, 80 Mo. 139; Weise v. Moore, 22 Mo. App. 536; Watson v. King, 4 Camp. 272; Wilson v. Reed, 3 John. 175; Freeman on Co-Ten. and Part., secs. 306, 307.

It is quite true that when persons acquire interest in lands apparently for the sole purpose of working mines in them they must be considered as entering into a commercial partnership. Snyder v. Burnham, 77 Mo. 52. But this principle is inapplicable here for the reason that it was not found by the court that the plaintiff ever acquired any interest in the land on which the said mines were located, or that the partnership as such had any interest therein, and it must therefore follow that the plaintiff did not enter into the partnership arrangement with the defendants. Sharp v. Benoist, 7 Mo. App. 534, decides no more than that the sale and delivery of a chattel by one tenant in common is effectual to pass the interest of the vendor;,the vendee becomes part owner in possession and the other co-owner has no right of action against the vendee to recover possession.

Such sale if authorized by the cotenant is a conversion which will warrant an action of trover against the vendor, but leaves the vendee in the position theretofore occupied by the vendor. Diveley, Jarvis and plaintiff were not cotenants but partners. The case is not one where a cotenant has sold a chattel but where two members of a partnership have sold all the partnership property to purchasers who had knowledge of the interest of the other partner before they completed their purchase. Besides this there was here an actual conversion by the purchaser of the other partner’s interest in the property, while in the case just cited there was no such conversion of the interest of the other cotenant by the purchaser. The two cases are entirely dissimilar.

We find no fault with the trial court’s conclusions of law and so affirm the judgment.

All concur.