Wilson v. Todhunter

WOOD, J., (after stating the facts). The undisputed evidence shows that the contract between the Tod-hunters and Wilsons for the development and cultivation of the lands in Chicot County, Arkansas, was made in Missouri and the settlements were to be made there. The contract was therefore a Missouri contract and its nature, validity and interpretation must be governed by the laws of that state. The suit having been instituted in Arkansas, the remedy for the alleged breach will be governed by this forum. Lawler v. Lawler, 107 Ark. 70; Rock Island Plow Co. v. Masterson, 96 Ark. 446-448. The Court of Appeals of Missouri in Graf Distilling Co. v. Wilson, 172 Mo. App. 612, announces the following rules: “Mere participation in the profits and losses of a business alone, would not make the participant a partner.” “Whether, in fact, a partnership exists, depends upon the intention of the parties, to be discovered from the contract into which they enter, construed in the light of all the facts and circumstances that obtain.” Ellis v. Brand, 176 Mo. App. 384, 391, 392, 393, and cases there cited; Goodyear Tire & Rubber Co. v. Ward, 197 Mo. App. 286. The same rules obtain in this State. Johnson v. Rothschilds, 63 Ark. 518; Rector v. Robins, 74 Ark. 437, 442; Herman Kahn & Co. v. Bowden, 80 Ark. 23; Buford v. Lewis, 87 Ark. 412; LaCotts v. Pike, 91 Ark. 26; Lewis v. Buford, 93 Ark. 57, 61; Roach v. Rector, 93 Ark. 521, 526; Beebe v. Olentine, 97 Ark. 390. Now the Todhunters in their testimony say concerning the purchase, improvement and cultivation of these lands, that a partnership existed, while on the other hand the Wilsons say that it was not the intention of the parties to create such relation. This testimony by each of them was but the statement of a legal conclusion. The undisputed facts as disclosed by the testimony of both the Todhunters and the Wilsons show that a partnership did exist, at least from the year 1907 until the year 1912. For their testimony 'shows that there was a community of interests between them and that their intention was to carry on the business sharing equally in the profits and losses without -any restrictions or limitations upon the partner who was managing the business as to the amount of the expeditures he should make, or as to manner in which he should conduct the business, of operating the plantation. For the years 1912, 1913 and 1914 there is decided conflict in the evidence as to the nature of the contract under which the business was to be conducted. The testimony of the Todhunters tended to show that the contract was the same for these years as for the previous years, but the testimony of the Wilsons tended to show that Neill Todhunter was limited by them to the expenditure of a definite sum for certain specified items and that they were not to be responsible for any amount in excess of this. The burden was upon the plaintiff, Todhunter, to prove that the partnership existed for these years, and if there were no other testimony in the record than that of verbal testimony of the Todhunters and the Wilsons we would be compelled to hold that the appellee had failed to sustain his case. But there are certain facts and circumstances established by other evidence and the exhibits which convince us that the appellee has proved by a preponderance of the evidence that a partnership existed between him and the Wilsons for the years 1912,1913 and 3914 as well as for the previous years. The testimony of one, Fischel, who was a bookkeeper in the employ of F. Weis, a merchant from whom Todhunter purchased supplies for the tenants on the place, was to the effect that not a year passed but what one of the Wilsons visited the plantation, sometimes twice a year; that he (Wilson) was there in 1914 twice and he never objected to any of the accounts or any dealings that Todhunter had with the house in regard to the plantation until a considerable time after Todhunter had made his annual contract with Weis for that year and had incurred an expense as shown by the account filed with the complaint of $655, which was incurred in procuring labor for the plantation. Weis, however, did not furnish the money to pay this expense. Witness was asked why the Wilson brothers should have made any objection to these accounts when Weis did not hold them responsible for it, and he stated, “The thing was a partnership.” The testimony of the Wilsons tended to prove that Neill Todhunter owed them a balance on the settlement for the year 1911 and for the years 1912 and 1913, and that he had paid nothing for the rent of the land for the year 1914 for which year they claimed they had no contract whatsoever with him. Yet, the record discloses that the Wilsons instituted suit against Neill Todhunter for rent of their land for the years 1915 and 1916 and had recovered a judgment against him in the sum of $300, but they had not set up any claim by suit for any amount during previous years. These are cogent circumstances tending to show that for the previous years the Wilsons recognized that Neill Todhunter had operated the plantation as a partnership enterprise. But notwithstanding the above circumstances, even if it could be said that the testimony of the Todhunters and the Wilsons on the issue of partnrship was still in equipoise, it occurs to us that a letter brought into the record by an exhibit to the testimony of S. N. Wilson turns the scale on the issue of partnership for the years prior to 1915 in favor of Neill Todhunter. That letter was dated March 4, 1916, and was written to Weis and Fischel to get them to collect an account which the Wilsons claimed to be due from Todhunter for rent of land for the year 1915. In the letter S. N. Wilson, among other things, says: “We were never able to get anything out of our land previous to last year where we farmed it jointly. We grew tired of paying out money and getting no return and divided the land. At his request we rented this land last year for $150 to Neill Todhunter and we certainly expect to collect it as it is a matter entirely separate from our partnership business prior to January, 1915.” The above letter was written prior to any law suits between the parties and there is no escaping the conclusion at the time it was written, from the viewpoint of the Wilsons themselves, that prior to the agreement for the partition of the land in January, 1915, and while they held the same in common, it was operated as a “partnership business.” The issue as to whether the lands were so operated during the years 1912, 1913 and 1914 for which an accounting is here sought, is a mixed one of law and fact. Having determined that issue in favor of Neill Todhunter, the only other issue is as to what amount, if any, was due the appellee by the appellants. This issue is purely one of fact. The parties expressly waived the appointment of a master to state an account and the cause is submitted on this issue on the accounts made exhibits to the pleadings and the depositions of the witnesses. It could serve no useful purpose to review the evidence on this issue of fact. It involves an examination of long accounts. From our own investigation, we are not convinced that a preponderance of the evidence shows that the findings of the chancellor are erroneous. He made findings in detail showing the losses, with interest thereon, sustained by the appellee for the years 1912, 1913 and 1914, and deducted from the aggregate sum of these amounts one-half of the amount of the personal property in appellee’s hands belonging to the partnership, and also the sum of $300, the amount of rent with interest thereon found to be due from the appellee to appellants for the years 1915 and 1916, and rendered a decree in favor of the appellee for the balance. We are unable to say from our examination of the record that these findings are not correct. The decree is, therefore, affirmed.