Shriver v. McCloud

20 Neb. 474

Opinion

Cobb, J.

The petition in the court below alleged “ That in the-month of March, 1883, the plaintiff entered into an agreement with the defendant to form a partnership with him in the business of buying cattle, in York county, in this state and vicinity, and shipping the same. The terms of said agreement being, in substance, as follows: The plaintiff to furnish the capital and devote so much of his time to said business as might be necessary, and the defendant to devote his time to said business and furnish a horse and buggy to be used in said business, and the plaintiff and defendant to share in the profits and losses of said business equally, the said partnership to continue during the spring of the year 1883.

“ 2. And the plaintiff and defendant then entered upon and carried on said co-partnership business under said agreement until the same was terminated on or about July,. 1883, and said co-partnership was terminated prior to the 1st day of May, 1883.

“3. And during the continuance of said-co-partnership-this plaintiff was compelled to and did advance and pay on account of said co-partnership business the sum of $8,502.-53, and has received from said co-partnership business the-sum of $7,064.50 and no more.

4. That said defendant has not paid or advanced on account of said co-partnership business any sum whatever in excess of the amount that said defendant has received from the said business of the co-partnership,” with an allegation of a demand upon said defendant for an accounting and payment of the amount due him, and a prayer for an accounting and judgment and general relief.

The defendant answered with a general denial.

There was a trial to the court, with a finding and judgment for the plaintiff. The defendant brings the cause to-this court by appeal.

There is no assignment of errors.

It apjiears from the bill of exceptions that there was: evidence tending to prove that in the month of'March, 1883, the defendant, a resident of York county in this-state, wrote to one Wade, of Chicago, a salesman of live stock, with whom he had been acquainted for about fifteen-years, to the effect that there was a number of cattle being-fed in his, McCloud’s, county, and that he thought that the cattle could be bought right, and that he wanted Wade-to come out there, or send some good man there, to go in with him and buy the cattle, that he felt a little rusty in regard to cattle, as he had not been shipping much lately- Wade shortly afterwards wrote to Shriver, the plaintiff, at Harvard, Iowa (whom he had also known for about fifteen years), the contents of McCloud’s letter. A few days thereafter Shriver went into Chicago with cattle, and Wade talked with him as to what McCloud had written. Shriver enquired about McCloud, and said he would go out (to Nebraska), and Wade gave him a letter of introduction to McCloud. The evidence also tends to prove that soon after the above occurrence Shriver came to Waco ■(the residence of McCloud), met McC., and delivered to him the letter of introduction from Wade. That this letter contained a statement that Shriver came out there for the purpose of going into partnership with him to buy some cattle. That upon receiving the letter of introduction, McCloud took Shriver to his house with him, and as to what took place between the parties on that evening at the house of McCloud, while the evidence is conflicting, it tends to prove that they then and there entered into a co-partnership for the purpose of buying and shipping cattle. The terms of this partnership, though not very definite, were, I think, sufficient for 'the purpose in view. ■ By its terms Shriver was to furnish the cash capital to pay for the stock to be purchased. Part of this money he claimed to have with him, and had, so far as appears, and part he professed to be able to obtain from Wade or the firm of which he ■was a member or employe, and McCloud was to furnish teams for the purpose of local travel and pay the local expenses of the business, and the two partners would share the profits and losses. The evidence tends to prove that the next day after entering into the said agreement of partnership, Shriver and McCloud together entered upon the business of looking up and buying cattle, that at the suggestion and request of McCloud the contracts of purchase were made in the name of Shriver alone, and nothing was said about McCloud being interested in such purchases, but that he nevertheless was a full partner therein. In this manner the firm purchased and shipped three shipments of cattle, and made an advancement to. Harvey Pickrel on a bunch of cattle of $400, which they forfeited. In these operations they lost, as found by the court, the sum of $1,425.08. All of which was made good and paid by the plaintiff.

It cannot be denied that there is conflicting evidence upon the most material point in the case — the formation of the partnership between the parties. The agreement of partnership, as found by the court, took place between them without the presence of any third person, and is evidenced by no writing then executed. It is sworn to by one party and denied by the other. • In such cases the disagreeable duty devolves upon the trial court or jury to decide which to believe and which to charge with the infirmity of a bad memory, or that obliquity of perception into facts unfavorable to their own side, which sometimes exists in parties to law suits. This duty is often imposed upon courts and juries, when there are no outside or collateral facts in the case to point out the party whose witnesses are most reliable; but in the case at bar, the trial court} to whom the facts were submitted, found much to aid-him in the contemporaneous and antecedent acts of the defendant. The letters of the defendant to Mr. Wade, as deposed to by the latter, show clearly that shortly before the first visit of Shriver to Waco, McCloud desired and solicited Wade. “ to come out there, or send some good man there, to go in with him and buy the cattle,” referring to cattle which he had already informed Wade were being fed in York county for the Chicago market. Now this independent circumstance was an important aid to the court in determining between the conflicting statements of Shriver and McCloud, whether, upon the former, a few days thereafter, calling upon the latter at his- home with a letter of introduction from Wade, their talking over the matter of the cattle being fed in the neighborhood during the evening, and in the morning going out among the cattle feeders and buying quantities of cattle on that and succeeding days, the cattle were purchased in pursuance of ■a contract of partnership for that purpose, formed on the ■evening of the first meeting and conversation, at the house of McCloud, or that McCloud was not interested in such purchases but was only conveying Shriver around through ■the cattle feeding region of York county, with a view of picking up a few stock cattle to feed himself. Upon the •other hand, the fact that the written contracts of purchase •of the cattle purchased were made in Shriver’s individual name, was a circumstance against him to be considered by the trial court. Whether that circumstance is sufficiently explained by the statement of Shriver in his testimony, that when they first started out to buy cattle, as they were riding along, he (McCloud) said, “Shriver, I would prefer to be a silént partner in the business for a while. I think it would be the bést way to buy the cattle, for me to take you around and introduce you to the people as my friend from Iowa, and for me to leg around the corner for you, •and try to induce them to sell to you; he says, ‘you do the buying and I will try to get them to sell to you. I am acquainted with a good many people that are feeding ■cattle.’ I says to him, ‘ you are acquainted with the business, and I will leave that to you, to do whatever you think is best.’” This was a question for the trial court to •determine from all the facts in the case. „

Before passing from this branch of the case, I will consider the fourth point of appellant’s brief, which refers to ’ the above testimony of Shriver. Counsel say in the brief, “ It is a fundamental principle of law that he who seeks equity must do equity. The evidence of plaintiff, Shriver, shows that he entered into a corrupt agreement with defendant, McCloud, to cheat and defraud the citizens of York county. They were to tell the citizens who had cattle to sell that McCloud was not a partner, but was going around with Shriver to introduce him and advise the citizens to sell, or in the language of Shriver:

“ Q,. Did McCloud say to Morrison that he did not have anything to do with this matter, but that they had better sell to you, that you 'were offering big prices ?

“A. Why, he may have said that; that was the agreement, that he was to leg around the corner; he was to try to get them to sell and I was to buy.

“Q. You in his presence did not contradict that?

“A. No, sir.

“ Q,. Did he talk that generally wherever you went ?

“A. Wherever we went.”

Had these parties really defrauded any of the people of whom they bought cattle and a question had arisen between such persons and the alleged partnership or either member of it, then probably the above evidence would have tended to estop them to allege a partnership. But not in a controversy between the partners. The evidence •does not tend to prove that the object and purposes of the partnership or- business in which it was to engage were ■either illegal, immoral, or contra honas mores, nor that the peculiar manner in which the business was conducted was at all contemplated in the formation of the partnership; and when the business resulted in a loss, to allow a member of the firm to avoid his share of the consequences through the consideration of a mere sharp practice used in the manner of prosecuting the business, devised and suggested •by himself, is a proposition which needs only to be stated.

Much in a line with the above is appellant’s second point, to the effect that the plaintiff ought not to have been allowed to set up and prove a partnership between himself and the defendant, there being no record of the same; and he cites sections 27, 28, and 29, chap. 65, Comp. Stats. I do not think that these sections have ever been construed by the supreme court, and it is not my purpose to discuss them now, further than to say that if they are at all appli cable to a partnership doing business in the name of one or all of the partners, it is very sure that its provisions cannot be invoked by one of the partners who is in pari delicto with the others.

Appellant’s first point is directed to the plaintiff’s petition, claiming - that it does not state facts sufficient to con_ stitute a cause of action. First, under this head, that it does not state in terms that the parties were partners. When it is borne in mind that pleadings consist in the-allegation of facts, and not in the statement of conclusions, and the petition is examined as to its contents, it will be seen that under,our liberal system of pleading it is sufficient as to the point we are now considering. By reference to the petition copied in the fore part of this opinion, it will be seen that after the allegation of an agreement entered into between the plaintiff and the defendant “ to form a partnership in the business of buying cattle in York county, Nebraska, and vicinity, and shipping the same,” and setting out the terms of the agreement; theu follows the allegation that “the plaintiff and defendant then entered .upon and carried on said co-partnership business, under said agreement, until the same was terminated, on or before the first day of July, 1883, and said co-partnership was terminated prior to the first day of May, 1883 (?)” This is an allegation of all the provable facts necessary to the conclusion of fact and of law, that the parties were partners for a time, and that such partnership had been dissolved. Any further allegations that they were partners would only be to state a conclusion, only to label the relationship which the facts stated show that they bore towards each other. See Gh'over v. Tallman, 8 Nev., 178, cited by counsel for appellant. This also answers the succeeding suggestion that the petition fails to allege the dissolution of the co-partnership. T do not understand that in this case it was necessary to allege the existence of unsettled accounts other than that due the plaintiff. There were no unsettled demands outstanding against the partnership, strictly speaking, and the balance claimed by the plaintiff is sufficiently stated.

The third point made by counsel for appellant is that the partnership, if any existed between the parties, was only in a single adventure, for which Shriver furnished the capital, and McCloud the labor and skill, the property in which the capital was invested remaining the property of Shriver, and McCloud to have a share of the'profits in the nature of compensation for his labor and skill, in which case he would not be liable for any part of the losses. To this he cites Herein v. Hall, 85 Am. Dec. (1 B. Mon., 159), 178. "Were the point and authority applicable to the case-at bar, it would be conceded. But the case at bar is not one of a single adventure, and according to Story (Story on Part., § 27, also cited by counsel for appellant), even in case of a single adventure, and the whole capital is furnished by one party, it requires a special agreement to prevent the conclusion of a community of interest in the property as well as in the profit and loss.

I therefore reach the conclusion that a cause of action is-stated in the petition, and that the evidence is sufficient to sustain the finding and judgment.

The judgment of the district court is affirmed.

Judgment affirmed.

The other judges concur.