LATION-INTENTION OF PARTNERS.

pends upon the intention of the parties to the Whether a partnership in fact existed dealleged partnership contract construed in the light of the circumstances under which it was executed.

[Ed. Note.-For other cases, see Partnership, Cent. Dig. § 3; Dec. Dig. § 17.*] 4. PARTNERSHIP (§ 54*)—EXISTENCE OF RELATION EVIDENCE.

TIONS.

probate court on a full hearing under section | 3. PARTNERSHIP (§ 17*)-EXISTENCE OF RE10, R. S. 1909, above quoted. Though the probate courts are inferior and of limited jurisdiction, it is well settled that their judgments given on such subjects as are within their jurisdiction are entitled to the same weight as that of any other court of record, and are regarded as conclusive in all collateral proceedings as here. See Johnson v. Beazley, 65 Mo. 250, 27 Am. Rep. 276. Though in the ordinary case the rights of the public administrator would attach on the mere filing of his notice, we are unwilling to accede to the proposition that such fact alone would oust the plaintiff of his rights in the premises which were being exercised under the valid order of a court of competent jurisdiction. In this view plaintiff was entitled to withhold and use all of the property under the order of the probate court, and the public administrator is without any right whatever in the premises. But as the property has been sold and converted into money by the administrator, and this, too, with the full acquiescence of plaintiff and in accordance with a stipulation executed by both parties and on file in the case whereby plaintiff agrees to accept satisfaction in money in accordance with his statutory rights touching such allowances, it would seem that the precepts of natural justice require that his rights shall be satisfied by a compensation in money out of the fund in accordance with the views above expressed.

The judgment should therefore be reversed, and the cause remanded, with directions to the trial court to enter judgment for plaintiff and against defendant on the counterclaim and in favor of plaintiff and against defendant for $1,000, together with interest at 6 per cent. on plaintiff's cause of action and his costs. It is so ordered.

Evidence in an action to charge defendant with liability as a partner in a legal business held not to show the existence of a partnership. [Ed. Note.-For other cases, see Partnership, Cent. Dig. §§ 77, 79; Dec. Dig. § 54.*] 5. PARTNERSHIP (§ 218*)-ACTIONS-INSTRUCIn an action to charge defendant as a partner, the court instructed that if the jury found there was no intention by defendant to become a partner, but that it was only intended that he share in the profits of the business as a consideration for signing notes for another to obtain capital to conduct the business they should find for defendant, but that such intention must be determined from the contract itself, and, if that failed to disclose whether a partnership relation existed, then the question of intention should be determined from all the facts. Held, that the instruction was not reversible error.

[Ed. Note.-For other cases, see Partnership, Cent. Dig. §§ 49, 426-428; Dec. Dig. § 218.*] 6. WITNESSES (§ 275*) CALLING ADVERSE PARTY-EXAMINATION.

Plaintiff by calling defendant as a witness thereby made him its own witness, and defendant's counsel could ask him leading questions on cross-examination.

[Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 924, 926, 967-975; Dec. Dig.

275.*]

[Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 927, 989; Dec. Dig. § 282.*]

Appeal from Cape Girardeau Court of

REYNOLDS, P. J., and ALLEN, J., con- Common Pleas; Robert G. Ranney, Judge.

cur.

A. GRAF DISTILLING CO. v. WILSON. (St. Louis Court of Appeals. Missouri. April 8, 1913.)

1. APPEAL AND ERROR (§ 882*)-ESTOPPEL TO ALLEGE ERROR.

A party is bound by the position which he voluntarily assumes at the trial; and, if he treats the issue as being for the jury, he cannot afterwards complain that it is submitted to the jury, though it could have been passed upon by the court as a matter of law.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3591-3610; Dec. Dig. 8 882.*]

2. PARTNERSHIP (§ 5*)-EXISTENCE OF RELA

Action by the A. Graf Distilling Company against Joe T. Wilson. From a judgment for defendant, plaintiff appeals. Affirmed.

Davis & Hardesty, of Cape Girardeau, for appellant. Ely, Kelso & Miller, of Cape Gir ardeau, for respondent.

ALLEN, J. This is an action by plainti corporation, appellant here, against one Joe T. Wilson, respondent in this court, seeking to hold the latter liable as a partner for an alleged partnership debt. It appears from the evidence that on or about June 12, 1907, one Joe Goldbaum launched a retail liquor business in the city of Cape Girardeau under the name of "Cape Liquor Company." That shortly prior thereto Goldbaum, desir ing to enter into this business, and having

no capital, induced the defendant Wilson and one John T. Sackmann to indorse notes for

him to the amount of $1,200 upon which money was procured from banks in order to

approved by the Supreme Court, as a correct statement of the rule on this question, in Campbell v. Dent, 54 Mo. 332, in which the court, in connection with the statement of the rule by Mr. Story, said: "In order to constitute a communion of profits between the parties, which shall make them partners, the interests in the profits must be mutual; each

Learned counsel for appellant, however, | (6th Ed.) § 49"-saying that this had been earnestly insist that the evidence as a whole shows beyond question that a partnership actually existed between the defendant, Sackmann, and Goldbaum, and say that the court erred in not so declaring. Upon the question that the court should have so declared as a matter of law, it might be sufficient to say that appellant did not take this position at the trial, but, on the contrary, asked in-person must have an interest in the profits structions submitting this issue to the jury.

[1] A party is bound by the position which he voluntarily assumes at the trial; and, where he treats an issue as being one for the jury, he cannot afterwards complain that such issue is so submitted, even though it be one that might have been passed upon be fore the court as a matter of law. Ellis v. Harrison, 104 Mo. 270, 16 S. W. 198; Berkson v. Railway Co., 144 Mo. 211, 45 S. W. 1119; Dunlap v. Griffith, 146 Mo. 283, 47,S. W. 917; 3 Cyc. 249; Vromania Apartments Co. v. Goodman, 145 Mo. App. 653, 123 S. W. 543; Dahmer v. Railway, 136 Mo. App. 443, 118 S. W. 496; Cady v. Coates, 101 Mo. App. 147, 74 S. W. 424. And the evidence was not such as to justify the court in, declaring as a matter of law that a partnership existed. So far as going to show that defendant was a partner in the business, it merely showed that the original agreement between the parties was that he was to share in the profits, if there were profits, in return for having indorsed Goldbaum's notes, after the latter had been paid.

[2] So far as the evidence shows, there was no agreement that defendant and Sackmann were to bear any portion of the losses; and the mere participation in profits and losses alone would not necessarily make them partners in the business.

[3] Whether in fact a partnership existed between the parties or not depended upon their intention, to be discovered from the contract into which they had entered, and construed in the light of all the facts and circumstances of the case.

as a principal trader. It is not enough that one shall receive a portion of the profits as compensation for services, but he must have some interest in the business, or property of the business, or trade, so as to give him a lien on the property for the protection of his interests or profits, and a control over the same; the single circumstance that he is to have a share of the profits does not necessarily make ore a partner so as to bind him by acts or admissions of one who carries on the business."

there

In Hughes v. Ewing, 162 Mo. 261, 62 S. W. 465, in which the authorities on this subject are reviewed, the court quotes the following language as the modern doctrine on this subject: "Notwithstanding these differences of opinion as to the test of mutual agency, it is entirely clear that the old rule that sharing profits as profits made one a partner is overthrown. It seems also to be true that the real test is that must be a community of interest-a joining as principals in carrying on a business for their joint profit. This community of interest as principals in the transactions necessarily excludes any other class of creditors whose interest is not in the business itself, who have no common ownership of the business, its capital or its stock in trade, who do not own the profits, if there are any, who have no voice or part in controlling the management of the business, but who are simply entitled to be paid out of the profits, if there are any, some claim or demand which they have against the real principals in the business." (The italics are ours.)

* *

In an early case in this court-Kelly v. In Torbert v. Jeffrey, 161 Mo. 645, 61 S. Gaines, 24 Mo. App. 506-it was said: "A W. 823, the court, speaking through Brace, mere participation in the profits and loss J., said: "Participation in the profits and does not necessarily constitute a partnership losses of a joint business or undertaking between the parties as so participating"-cit- affords the usual, and perhaps the most ing cases. The court then quotes from Mr. cogent, test of the existence of an intention Story as follows: "In short the true rule, 'Ex to form a partnership. An agreement for æquo et bono,' would seem to be that the such participation is not, however, a concluagreement and the intention of the parties sive test, and does not absolutely constitute themselves should govern all cases. If they a partnership as a conclusion of law, if othintended a partnership in the capital stock, er circumstances show that no partnership or in the profits, or in both, then that the was intended. It is only prima facie proof same rule should apply in favor of third per- | which may be rebutted by evidence of other sons, even if the agreement were unknown to them. And, on the other hand, if no such partnership were intended between the parties, then that there should be none as to third persons, unless where the parties had held themselves out as partners to the public, or their conduct operated as a fraud or de

facts and circumstances." (Italics ours.) See, also, Diamond Creek, etc., Mining Co. v. Swope, 204 Mo. 48, 102 S. W. 561; Sawyer v. Burris, 141 Mo. App. 108, 121 S. W. 321; Mingus v. Bank, 136 Mo. App. 407, 117 S. W. 683; Bowen v. Epperson, 136 Mo. App. 571, 118 S. W. 528; Glore v. Dawson, 106 Mo

In the case before us the evidence that the defendant was to participate in the profits, if there were profits, was at most but priina facie evidence of an intention to form a partnership. Unquestionably other evidence in the case tended to rebut that presumption, and tended very strongly to show that the intention was not to form a partnership. We think that the plaintiff did not make out a case entitling it to have the court declare as a matter of law that defendant was a partner in the business, even had plaintiff assumed this position at the trial.

Mo. App. 78; Gille Hardware, etc., Co. v. I only we are to ascertain the intent of the McCleverty, 89 Mo. App. 154; Cudahy v. parties, which intent must control, unless Hibou, 92 Miss. 234, 46 South. 73, 18 L. R. the language makes a partnership regardless A. (N. S.) 975, and notes; Brotherton v. Gil- of it, or even of assertions in it to the conchrist, 144 Mich. 274, 107 N. W. 890, 115 Am. trary. * If Hibou had a claim to St. Rep. 397, and notes; 30 Cyc. p. 369 et the profits because of joint interest, and not seq. merely to secure debt, there was a partnership. If, however, he was only looking to the profits of the business under Hoxie's management for payment of his debt, this does not make partnership, because in that case it remained, if finally unpaid, a personal debt from Hoxie. Division of net profits 'share and share alike' after payment of the notes does not make a partnership in præsenti, even if it does in futuro on condition. It is not to be seen in the case before us that there was any community of interest in the stock of goods, fixtures, furniture, etc., nor any joint ownership in the business, nor that each was agent of the other. Hibou was not the owner and Hoxie his agent. * The text of 22 Am. & Eng. Enc. Law (2d Ed.) p. 30, is this: 'A bona fide creditor, receiving payment of his debt by installments or otherwise out of the business, is not thereby made a partner.' And in support of it are cited authorities from 15 states, and it has our sanction; and this is the most that can properly be said of the case in hand. See notes to 58 Am. Rep. 105, and in the case of Dubos v. Jones, 34 Fla. 539, 16 South. 392. And these notes indicate great ability and research, and are referred to now in support of all the propositions in this opinion."

In Cudahy Packing Co. v. Hibou, 92 Miss. 234, 46 South. 73, 18 L. R. A. (N. S.) 975, an agreement was entered into by the defendant Hibou and one Hoxie, whereby the former agreed to furnish to the latter money, goods, wares, and merchandise of the value of $4,020.05, in order to enable the latter to engage in the saloon, restaurant, and hotel business in Vicksburg, Miss. Hoxie agreed to devote his entire time to the management of the business and to repay Hibou in monthly installments, evidenced by a series of promissory notes executed by him, agreeing to pay interest thereon. It was agreed that Hoxie should draw out of the business for his own use $90 per month; that the net profits of the business should be applied by him to the payment of the notes; and that Hibou should receive one-half of the net profits from the operation of the business, after all of said notes had been paid. The business was carried on under the name of "Hibou Exchange, Magruder Hoxie, Proprietor," which appeared upon the cards, letter heads, etc., of the business. As in the case before us, the business did not prosper, and Hoxie later became a bankrupt. The suit was to hold Hibou liable as a partner for the price of a bill of goods purchased by Hoxie and used in the business.

Upon the question of whether Hibou was to be held as a partner, the court said: "The question is whether the agreement made establishes a partnership as between the parties themselves. If it does not, it is clear in this case that there was no partnership as to third parties. There could be no reasonable pretense of it, certainly before the debt to Hibou was paid. There is here no holding out to the world as partners, and so to establish such relation it must appear from the agreement itself. An agreement may make a partnership by its phraseology and legal construction, regardless of intent, or even against its express repudiation of such intent. Is that the case here? If there was a partnership between Hoxie and Hibou, it must appear from this contract. From this

*

[4] That case is almost "on all fours" with the case before us. Learned counsel for appellants very ingeniously seek to draw a distinction between a case (such as Cudahy, etc., Co. v. Hibou, supra) where one who is sought to be held as a partner directly lends money to another for the conduct of the business, and a case (such as here) where he indorses notes of the other party to obtain the money so to be used. We do not, however, see that such distinction should be made. In the case before us Goldbaum was primarily liable upon the notes at the bank and remained liable for the debt in any event, regardless of whether there were profits or not. Although it was contemplated here, as in the Cudahy Case, that profits from the business would be applied to the payment of the debt, and in both cases the primary debtor was unable ultimately to pay, here, as there, the defendant was to receive no profits until after the debt was paid.

In the case before us we do not see that it would have made any essential difference had the defendant loaned the money directly to Goldbaum, taking his notes therefor, instead of indorsing the latter's notes to secure the same. Defendant's credit was pledged to secure the money. The evidence shows that he "indorsed" Goldbaum's notes, from which we must conclude that the latter was made primarily liable for the debt,

and evidently remained liable therefor regardless of the outcome of the enterprise.

It is also urged that by the agreement of September 3, 1907, the parties recognized that a partnership existed, and that defendant and Sackmann thereby sought to withdraw therefrom. This does not necessarily follow. If no partnership existed by virtue of the original agreement, certainly none was created by the second. It appears that by the latter Goldbaum agreed to do nothing more than he had originally obligated himself to do, but the others agreed to forego any right to participate in the profits. We are not concerned with the validity of that agreement. So far as being evidence of the prior existence of a partnership, we cannot say that it has any great probative force. It may have come about because defendant and Sackmann feared that creditors would seek to hold them as partners; but, as the case was tried, this was a mere circumstance for the consideration of the jury.

for the defendant; but that such intention must be determined from the contract itself, and, if that fails to disclose "such partnership or that no partnership existed between the parties," then the question of intention should be determined from all the facts and circumstances as stated by the witnesses. In view of what we have said above, we see no reversible error in the giving of that instruction.

[6] As to the point made by appellant that the lower court erred in permitting leading questions to be asked the defendant, Sackmann, and Goldbaum by defendant's counsel on cross-examination, it is sufficient to say that these witnesses were called by plaintiff, and were thereby made its witnesses. And, while more than ordinary latitude was allowable to plaintiff in its examination of them (of which plaintiff availed itself), this did not deprive the defendant of the right to cross-examine them.

[7] On cross-examination it was not reversible error on the part of the court to permit leading questions to be asked them by defendant's counsel. The matter was one largely within the discretion of the trial court.

The instructions given for plaintiff were quite as favorable to it as the latter could require. The instruction asked by plaintiff and refused by the court, sought to have the court declare that though the defendant and Sackmann never intended to become partners, and though it may have been agreed among defendant, Sackmann, and Goldbaum that neither defendant nor Sackmann were to be partners in the business, nevertheless if by the terms of such agreement defendant was to sign notes for procuring the cap- | right party, and it is hereby affirmed. ital of the business, and was to share in the profits as profits, then the relation that he had thereby assumed was that of partner. The refusal of this instruction was proper, for the reason, if for none other, that the sharing of profits, as profits alone, does not necessarily make one a partner. Nor do we think that the case falls within that class of

There was ample evidence to support the verdict; and we see no reversible error in the record. The case was well tried below, and has been very ably presented here by learned counsel on both sides.

We think that the judgment was for the

REYNOLDS, P. J., and NORTONI, J., con

cur.

GENTRY et al. v. WABASH R. CO.

cases where parties have misconceived the le- (St. Louis Court of Appeals. Missouri. April

8, 1913. Rehearing Denied
April 22, 1913.)

gal effect of an agreement into which they have entered, which by its "phraseology and legal construction" creates a partnership "re- 1. MASTER AND SERVANT (§ 284*)-INJURIES gardless of intent, or even against its express repudiation of such intent."

-CONTRIBUTORY NEGLIGENCE-JURY QUES

TION.

Evidence in an action for the death of a sectionman by having a track jack knock the track before an approaching train held to against him while attempting to take it from make it a jury question whether decedent's act in grabbing the jack was pursuant to his foreman's order.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1000-1090, 1092-1132; Dec. Dig. § 284.*]

[5] Instruction No. 5, given at the request of the defendant, after being modified by the court, is complained of. This instruction told the jury that plaintiff was required to make out its case from the greater weight of the testimony, that the fact that defendant was to participate in the profits did not necessarily make him a partner, but that under the evidence it was a question of intention of the parties whether a partnership existed. That if the jury found there was Evidence in an action against a railroad no intention on the part of the defendant to company for the death of a section hand while become a partner with Goldbaum and Sack- attempting to grab a track jack from the track before an approaching train held to make it a mann, but only intended to share in the prof-jury question whether decedent was negligent. its of the business as a consideration for signing notes of Goldbaum to obtain capital for the business, then the verdict must be

2. MASTER AND SERVANT (§ 289*)-INJURIES -JURY QUESTION - CONTRIBUTORY NEGLI

GENCE.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1089, 1090, 1092-1132; Dec. Dig. § 289.*]