ARK.] JONES V. BOEN. 921 JONES V. BOEN. 4-4580
Opinion delivered April 5, 1937. 1. PARTNERSHIPS—AGREEMENT.—An agreement between Jones and the Bryants by which the Bryants were to furnish Jones the money with which to buy stave timber lands and manufacture staves, the Bryants to market the staves and divide the net profits, did not constitute a partnership. 2. PARTNERSHIPS.—In an action by Boen against J. for an accounting on the theory that a partnership existed between. them by which Boen was to locate and buy timber for J. which J. was to cut, haul and manufacture into staves, the net profits to be divided between them, held that Boen failed to establish by a preponderance of the evidence that a partnership existed between them; and a decree rendered against the Bryants, alleged partners of J., on testimony taken before the Bryants were made parties was error. Appeal from Boone Chancery Court ; Elmer Owens, Chancellor ; reversed. Shouse & Walker, for appellant. J. H. Brock, Rose, Hemingway, Cantrell & Lough-borough and Virgil D. Willis, for appellees. SMITH, J. In 1928, J. C. Jones left his home in Ken-tucky and came to northwest Arkansas. He settled first at Ponca in Newton county, and later at Harrison, where he has since resided. He engaged in the stave and timber business, but lacking capital he enlisted J. M. Bry-ant & Sons, of Clarksville, Arkansas, in his operations. He and the Bryants entered into a written contract, which
922 JONES V. BOEN. [193 was offered in evidence, by the terms of which the Bry-antS furnished the machinery and-the money to finance his operations and became exclusive agents for the sale of his finished products, the Bryants receiving fifty per cent. 'of the net' profits. Jones bought timber, ran the mills, and operated the business under the name of the C.. Jones Stave Company.- Appellee Boen, prior to 1928, lived at Clarksville, where 'he, too;• manufactured staves for . the Biyants under a contract by which the latter furnished him operating capital. In 1928, Boen was appointed deputy United States marshal and removed to Harrison. Boen admitted this was a position which was supposed to occupy all his time, but in the spring of 1933 he procured and operated a- stave mill and sold staves which he manufactured to the J. C. Jones Stave Company. , In May of that year, Boen assisted Jones, in buying a tract of land at a.price which showed 'him to 'be a good judge of timber and a shrewd, close. trader. Jones requested Boen to look out lor other timber. At that time there was no contraet of any kind between them. .. Jones learned of some timber lands- for sale in • Missouri,. and Boen went with -hith at his imitation to inspectithem.. They made several other trips. to Missouri together before anything. was said .and agreed upon between Boen and Jones. . Boen testified that up -on their return from one of these trips that subject was taken up, and they • entered into a contract by the terms of which he woitld locate 'and purchase timber, while Jones furnished', all the money and. paid . all the expenses, and when the timber so 'purchased had .been manufactured they would :divide the' prOfits equally, in other words, would . .become partners- in- the .enterprise. The profits were to . be, divided • on this-basis: When the timber on a : particular tract . of: : land :had been manufactured they, would determine the stumpage value .of the timber when cut . and, the purchase price would . be sub-.. tracted therefrom_ and. the difference equally , divided: Boen. testified that thi agreeMent was reached and this. :partnership 'entered. into, in a Conversation 'lasting five or .ten minutes after they-had stopped their car on the
ARK.] JONES V. BOEN. 923 side of the road . to discuss and settle this question. No other details of the 'partnership were discussed.or agreed upon. Nothing was written or signed then ; or : later to evidence the contract. Jones denied that any such con-yersation . OCcurred or that any such. agreenient was .macle. His version is that Boen . agreed to ... employ sirch time as he was able to spare from his official clutie'S and sherik.1 be paid a reasonable compensation for his seriTiCes: , The Jones Stave . Company, purchased timber adapted to the manufacture..of _staves on 33,966 acres of land. Payments were made by drafts . drawn on Bryant & Sons Stave Company; , . . 'This suit was brought by Boen against Jones upon the theory that they. had formed a partnership, and an accounting. was prayed. The court found that . a partner7 ship existed, and that : stumpage profits of $24;210 had been earned, and a. decree for one-half.of that amount was rendered, not only. against Jones, but-against the. Bryant Stave Company as . well. .This was. done upon the theory that Jones and the Bryant Stave Company were partners in . Jones' operations:and that both . were liable, as partners. The Bryant.Stave Company was,not made a party until after all the testimony had been taken. The testimony of the . Bryants had been .taken, and the written contract between them and .Jones .was offered:in evidence. There is no dispute as to its terms.. This:contract was to the . effect that Jones should be furnished money by the Bryants io buy stave , timber lands - and manufacture' staves.: • The- BrYants were to' niarket the staves, and the net profits were to he . equally diVided. :That such agreements do not constitute a partnership has been frequently decided.: Hai)cock v. Willidm,s, .54 Ark. 884, 16 S. W. 3, .21i6haffy . v. Wiison, 138 Ark.. 281;211 'S. W. 148; ). tone v. Pigg s ,'16 •, 3 . Ark..211, 259 S. 'W. 412. It was error,. therefore,. to-render a. decree. against the.Bryants . upon the theory that they were partners of Jones: . There , was no connection In the relation between the Bryants and Jones with the . relation between Jones and Boen. Moreover, it was 'error to, render :judgment against the Bryants . on testimony jaken .before...they
924 JONES V. BOEN. [193 were made parties to the suit. The Bryants were made parties just before the final submission of the case, and no testimony was taken thereafter. We are of opinion also that Boen has failed to show by a preponderance of the testimony that a partnership existed between himself and Jones. A few days before the complaint was filed Jones wrote Boen a letter asking him to state in writing what his contention was, and in response to this letter Boen answered as follows : "About the first of July, 1934, as you recall, we made the agreement that'I was to purchase this timber if possible, and that we would share equally in the profits derived from the manufacture of staves or resale of the timber." The complaint later filed conformed to this theory. The absurdity of this contention is apparent. Boen admitted that during the five or ten minutes conversation in which he says that agreement was arrived at none of the details of the partnership were discussed or agreed upon. Nothing was said about the money on which the partnership would operate. He understood— although it was not discussed—that Jones would procure the mill and the money and would supervise the cutting and hauling of the timber and the manufacture of the staves. Nothing was said about the compensation, if any, Jones would receive for this service except to share in the profits. It has already been stated that the contract between the Bryants and Jones required Jones to pay the Bry-ants one-half of the profits. The contract as stated in the letter above copied would have required Jones to pay the other half to Boen. In other words, Jones would have assumed all the financial risks and the burden and responsibility for cutting, hauling and manufacturing staves without hope of prospective profit to himself. We are unable to give credit or weight to such testimony. Boen attempted to explain that neither the allegations of the complaint nor the recitals of the letter expressed the terms of the contract, and that when he wrote "we would share equally in the profits derived from the manufacture of the staves or the resale of the timber," he in-
ARK.] JONES V. BOEN. 925 tended and meant to say that theY were to share equally the profits arising from the increased stumpage value of the timber, to be paid as it was manufactured into . staves. That an experienced stave • man, such as . Boen was, who knew what was meant by the phrase "manufacture of staves," should have intended, by the use of that phrase, to refer to stumpage value, is testimony which carries no conviction. - It is impossible to reconcile the testimony of Jones and Boen. They are equally interested in the effect to be given their testimony.. We must accept the testimony of one and reject that of the other. In addition to the facts already stated, there are other facts which lead us to the conclusion that Boen failed to establish his' case by a preponderance of the testimony. There was no writing of any kind corroborating the testimony of Boen except his own letter above referred to, which was written after the controversY had arisen. The timber had then all been purchased and the lawsuit was in the offing. There is no other corroboration of the testimony of Boen except that of Buck Morrison, who was county surveyor in the Missouri county where the timber was located and who was also engaged in the real estate business. Morrison testified that he heard a conversation between Jones and Boen, in which Jones admitted making the contract referred to in Boen's letter as above copied. He could not be shaken from that definite statement. He was asked the specific question if it were not stated that Boen's interest- was in the value of the t ' imber at .the stump, and he answered that it was not. This testimony contradicts that of both Jones and Boen as contained in their depositions which were read at the trial. This testimony of Morrison was further contradicted by that of G. W. Rogers, a Missouri attorney who had been employed in the examination of the titles to the land on which the timber had been bought. Rogers testified that Morrison told him he had never heard either Boen or Jones make any statement regarding their business relationship. Seven persons from whom Boen purchased timber, or with whom he negotiated, testified that
926 JONES V. BOEN. [193 Boen had told them at different times and places that he was one of several persons engaged by the Jones Stave Company in purchasing timber, and stated in , effect that he had no other interest in it: There were other persons engaged in buying timber for the Jones Stave Company, and it was they—and not Boen—who purchased the larger part of the timber bought by the Jones Stave Company. Boen testified that his partnership interest ex7 tended only to the timber, , which. he., himself had purchased. The decree must, therefOre,. be reversed as contrary to the preponderance of the testimony. .The fact remains, however, that Boen earned some compensation. The testimony is sharply conflicting as to 'the number of days devoted to this employment by Boen. •His purchases extended over a period of 'about six months. Boen stated that he devoted about 105 days to that employment. This statement is highly improbable, as 'during the entire sik months Boen was working . at an all-tifae job, and Jones testified that Boen inspeeted . ,and purchased.timber only when he could get away from his regular job and during his furlough, which lasted only one week. There are other circumstances in the case which have been carefully considered, but which do .not, in our opinion, furnish any corroboration of Boen's testimony: There is the same conflict as to the expenses incurred by Boen as there was as to the ,time devoted to his' employment. There were trips made ,by Boen in his own car which he made at his own expense. The Aimber bought or inspected was at an average distance from Harrison of about 85 miles, and Jones testified that Boen did not devote more than twenty or thirtY 'days to' this employment. Other trips were made by Boen in Jones' car, and some in company With Jones, on which .occasions the expenses were paid by Jones. Boen admits having been paid $490, but stated this money wa g advanced as expenses or on account of his prosliective profits. Jones testified that this was as much as the services were reasonably worth and as much as lie owed.
ARK.] 927 Having accepted as true the version of Jones—and not that of Boen—as to their relationship, we accept also Jones' testimony as to the compensation. The decree will, therefore, be reversed, and the cause will be dismissed.
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