Buckner v. Ries

Bates, Judge,

delivered the opinion of the court.

The parties being at the State tobacco warehouse in St. Louis, where Buckner was about to sell a hogshead of tobacco at auction, entered into a partnership -in a sale of the tobacco, it being agreed between them that Buckner would give Ries one-half of the sum said tobacco might bring over the sum of twenty-five cents per pound, and Ries would give Buckner one-lialf of the sum said tobacco might sell for less than twenty-five cents per pound. The tobacco sold for less than twenty-five cents per pound, and this suit was brought for one-half of the difference between the sum it sold for and the sum it would have amounted to at twenty-five cents per pound. The plaintiff recovered in the Circuit Court. In that court both parties treated the arrangement as a partnership, and two points were made ; 1st, that the agreement was void as being within the statute of frauds —which was properly overruled, because, being an agreement between parties, it was not required to be in writing, the possession of one partner being the possession of both; — and, 2d, that as a suit between partners it could not be brought at law, but there must be a bill for the settlement of the partnership accounts. This point was also properly overruled. There being only one item unadjusted between the partners, it might be settled in an action at law. (Byrd v. Fox, 8 Mo. 574 .)

Judgment affirmed.

Judges Bay and Dryden concur.