majority">ALLEN, d.

This action was begun before a justice of the peace where plaintiff had judgment. Upon defendant’s appeal to the circuit court, and a trial deno vo there, before the court without a jury, plaintiff again prevailed, and the case is here upon defendant’s appeal.

It appears that plaintiff is a carpenter and builder, and defendant a dentist; that an oral agreement was entered into between them whereby it was agreed that defendant would purchase certain ground in the city of St. Louis and supply the necessary money for the erection of four houses thereupon,’ and that the plaintiff would superintend the erection of such houses and be paid at a certain rate for doing the carpentering work; and that the houses would be sold, when *226completed, and that the profits realized would he divided equally between plaintiff and defendant.

The four houses were erected under this agreement, and three of them were sold for three thousand dollars each, and the profits divided. The fourth house, to which this action pertains, was sold upon time payments, for the price of thirty-three hundred dollars— i. e., a deed of trust for two thousand dollars was placed upon the property, and the remainder of the sale price, to-wit, thirteen hundred dollars was paid as follows: Fifty dollars in cash, and the remainder in monthly notes of fifteen dollars each, secured by a second deed of trust.

The defendant had purchased the ground in question in his own name, and at all times held title to all of the property until the respective houses were sold, accounting to plaintiff for the profit derived from the sale of the first three thereof. It appears that plaintiff was not consulted with respect to selling the fourth house upon time payments, and that there was no special agreement or understanding with respect to this matter; that plaintiff did not learn of such sale until after it had been consummated, though he says that,' prior to the sale, defendant spoke to him of selling it upon time payments, to which plaintiff made no reply. After the sale of the house, which was consummated by a real estate broker, defendant gave plaintiff a statement of the transaction, showing the cost of the building, the sale price, the broker’s commission, and the profit, the latter being $574.05. And this suit is to recover one-half thereof, viz., $287.02, plaintiff having refused to accept a part of the monthly notes as his share of the profits.

It appears that, after paying to defendant fifteen of the monthly notes above mentioned, the purchaser defaulted and made no further payments; that he then transferred the property to another person, who likewise made no further payments, and that the de*227fendant procured from the latter a deed thereto for the sum of $20, in lieu of foreclosing the second mortgage securing the notes.' Thus, at the time of the trial below, defendant again had title to the property, and it appears that he had rented it and was receiving the rents.

No declarations of law were requested below, beyond one on defendant’s part, in the nature of a de-’ murrer to the evidence, which was refused; but the court merely entered a judgment for plaintiff for $287.02 with interest from the institution of the suit.

The first point made by learned counsel for appellant is, that the contract shown in evidence created a special partnership; that the action was one to recover plaintiff’s share of the partnership profits, requiring an accounting, and that therefore the justice of the peace had no jurisdiction of the action and the circuit court could acquire none on appeal. But it is clear that the oral contract shown in evidence did not create a partnership. Essential elements of a partnership are lacking. [See Graf. Dist. Co. v. Wilson, 172 Mo. App. 612, 156 S. W. 23; Ellis v. Brand et al., 176 Mo. App. 383, 158 S. W. 705, and authorities to which these cases refer.]

And it is also urged that, whether or not the contract' established technically a partnership, the suit is one to recover an unascertained profit, requiring an accounting between the parties, and over which a justice could have no jurisdiction. But the action does not appear to be one for an accounting, but for the recovery of the single item in question. We think there was nothing to deprive the justice of the peace of jurisdiction.

But it is insisted that there could be no recovery in any event, for the reason that, at the institution of the suit, there were no ascertained profits within the contemplation of the contract, or at any rate no cash profits; that when the house was sold upon time pay*228ments, plaintiff was bound to take Ms share of the profits in the purchaser’s monthly notes, and abide the outcome until cash profit's were realized. There might indeed be much force in this argument were it not for the fact that it appears that ' defendant had not only assumed to dispose of the property as he saw fit, and sold the same upon time payments, without any specific assent of plaintiff thereto, and without disclosing to plaintiff the terms of such sale or the purchaser, but rendered to plaintiff a statement of the profits arising from the transaction, and thereafter dealt with the property as though plaintiff were no longer concerned as to what was done with it.

It thus seems that defendant himself treated the matter as though the profits were ascertained when the house was sold, whereupon he rendered to plaintiff a statement thereof, and proceeded to treat the purchaser’s notes as his individual property. The trial court doubtless took this view of the case, i. e., that defendant had treated the profits as having been ascertained upon' the sale of the house, and that the statement rendered plaintiff constituted an admission by defendant - of the amount due plaintiff on account thereof. At any rate this view, we think, is tenable; for one may be bound by the position which he assumes in such a matter. And as the case was tried before the court, sitting as a jury, and no declarations of law asked or given, it is our duty to affirm the judgment if it may be sustained upon any theory supported by the evidence.

The judgment is therefore affirmed.

Reynolds, P. J., and Nortoni, J., concur.

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