Kuder v. Rowan

Plaintiff brought suit in a justice court for $45.90 alleged to have been due him upon the following contract —

"Kansas City, Mo., Sept. 4, 1919.

"Gentlemen:

"I have this date received of C.G. Rowan Truck and Tractor Co., ($156), One Hundred Fifty Six Dollars which pays me in full for all deals, with the exception of the three Vochester deals, that Mr. Cope and I are in partnership on. Providing Mr. Cope sells these used jobs, I am to receive my half of the commission on same.

"Yours truly, "H.B. KUDER. "Accepted as stated above "C.G. ROWAN."

There was a judgment in favor of plaintiff for the amount sued for and defendant appealed to the circuit court where the case was tried without the aid of a jury and upon hearing the testimony the court rendered judgment in favor of plaintiff in the sum of $22.95, and defendant has appealed.

The facts show that plaintiff and one Cope were in the employ of the defendant who was engaged in the business of selling automobile trucks. Defendant discharged plaintiff and thereupon the receipt and agreement quoted, supra, were executed. The evidence shows that prior to the time Cope's employment with defendant was terminated he sold a Vochester truck, being one of "the three Vochester deals" mentioned in the writing, for the sum of $540. The commission defendant agreed to pay for the selling of this truck, being sum equal to eight per cent of the sale price. The commission amounted to $45.90, which defendant paid to Cope. Plaintiff demanded of defendant his half of the commission for the selling of this truck but defendant refused to pay the same, resulting in this suit.

Defendant contends that the court erred in refusing to give its first declaration of law to the effect that under the pleadings and evidence plaintiff was not entitled to recover and in support of this contention it is said that the writing quoted supra is merely "a receipt in full for all money due him (plaintiff) up to the time he left the service of this defendant and a notice to this defendant that plaintiff is a partner of one Cope. This writing does not in any way obligate the defendant to assume the burden of dividing the partnership funds between the partners. It is simply an admission on the part of the defendant that any commission then due or which might thereafter become due to the partnership between plaintiff and Mr. Cope did not enter into the settlement at that time made." That as defendant paid one of the partners in full he discharged the debt of the partnership and plaintiff is not entitled to recover. Defendant also contends that the suit is for a partnership demand and that one partner cannot sue for his portion without joining the other.

We must decide defendant's contention against him. The receipt and agreement purports to be something more than merely a receipt excluding the amount of commission earned or that might be earned by the partnership. It contains an agreement that if Cope sold the trucks, plaintiff was to receive his half of the commission on the same and at the bottom an acceptance on the part of defendant is noted. The agreement does not state by whom plaintiff's commission was to be paid but does provide that plaintiff should receive his half. There was no necessity for the insertion of a clause of this kind if it was merely intended that plaintiff was to receive his half of the commission from Cope, for they being partners, the law provided for this in case Cope collected the whole of the commission. However, the agreement is ambiguous upon its face at least as to who was to pay the commission. There was parol evidence not objected to throwing light upon the provisions of the writing in reference to this matter. There was evidence on this point tending to show that it was understood by all three parties concerned, at the time plaintiff left defendant's employ or before, that defendant was to pay plaintiff direct his one-half of any commission earned by the partnership.

Of course, in the absence of any such agreement defendant would have been within his rights in paying the entire commission to Cope. [Anable v. McDonald Land Mining Co., 144 Mo. App. 303.] This law is founded upon an implied agreement arising out of the relationship between the parties, that one of the partners impliedly constitutes the other his agent in transacting business of this kind. We see no reason why members of a partnership asindividuals, together with the person with whom they are dealing, may not enter upon a contract, founded upon a sufficient consideration, in relation to how money should be paid coming to them as members of the partnership even though such agreement is inconsistent with the implied rights, duties and authority arising from an ordinary partnership relation. We think that kind of an agreement was entered into this case and that the agreement was founded upon a sufficient consideration. It is stated in Nelson v. Diffenderffer, 178 Mo. App. 48, 55, 56 —

"It is not necessary that a supposed consideration be of some real value to the promisor. It is sufficient that it is any detriment or inconvenience to the promisee or that he change his relations or relinquish his supposed right against the promisor or a third party in consequence of such promise. [Williams v. Jensen, 75 Mo. 681; German v. Gilbert, 83 Mo. App. 411.]"

In this case defendant was the promisor and plaintiff the promisee. There was ample evidence of an agreement between all three parties that plaintiff should relinquish his right against Cope to look to the latter for his part of the commission. At the time the suit was filed the partnership was out of existence and plaintiff had authority from Cope to bring this suit. There is no objection to plaintiff's bringing this suit without joining Cope. Plaintiff was not suing as a partner but sued upon an express agreement had between him and the defendant wherein, as we have already stated, the defendant agreed to pay plaintiff individually and not as a partner one-half of the commission.

Defendant's third and fourth declarations of law were properly refused. They provided for a peremptory finding for defendant.

The judgment is affirmed. All concur.