(222 S.W.) Henry C. Gillis and Tye & Siler, all of under the law and, facts, parts of the term Williamsburg, for petitioners. of the Whitley circuit court should be held J. B. Snyder, of Williamsburg, and M. A. in the city of Corbin and asking that the Gray, of Corbin, for respondent. petition for a writ of prohibition be dismissed. M. A. Gray, of Corbin, and Hazelrigg & Hazelrigg, of Frankfort, for city of Corbin. CARROLL, C. J. In 1910 the Legislature enacted a law, that may be found in section 963d of the Kentucky Statutes, providing in part "that, any county of this commonwealth having therein, or that may hereafter have therein, a city of the third class, not a county seat, and being more than ten miles from the county seat" the circuit court of such counties should be held alternately, so as to divide the time between the county seat and the third-class city. The Legislature of 1920 (Acts 1920, c. 164) put Corbin in cities of the third class, and therefore, if the city of Corbin was wholly within the county of Whitley, the section of the statute would require that the Whitley circuit court should be held in part in the city of Corbin. After this act of 1920 became effective, the city of Corbin having complied with all of the other requirements of the act of 1910 necessary to enable it to secure terms of court, petitioned in the proper manner the respondent, Hon. R. S. Rose, judge of the Whitley circuit court, to hold terms of the Whitley circuit court, as required by the statute, in the city of Corbin, and Judge Rose, who was at the time holding a term of court in Williamsburg, the county seat of Whitley county, thereupon entered an order directing that parts of each term of the Whitley circuit court should be held at Corbin. After this order was made, the plaintiffs, M. D. Reed and S. P. Petrey, respectively jailer and circuit clerk of Whitley county, filed their petition in this court asking that a writ of prohibition issue, prohibiting Judge Rose from holding any part of the Whitley circuit court in Corbin. To this petition Judge Rose filed a response, setting forth in substance that he conceived it to be his duty, under the law, to hold parts of the terms of the Whitley circuit court in the city of Corbin; and the city of Corbin also filed its petition to be made a party, setting up that, 222 S.W.-8 When the petition for a writ of prohibition was filed, a temporary restraining order was issued by this court, enjoining Judge Rose from holding any part of the terms of the Whitley circuit court in the city of Corbin until the case could be disposed of on its merits, and this we will now do. It will be observed that the statute provides that courts shall be held in two places only in counties "having therein, or that may hereafter have therein," a city of the third class. It is therefore a condition precedent that the county in which it is sought to have terms of court held in two places must have therein a city of the third class, and so we will confine this opinion to the single question of whether Whitley county has therein a city of the third class, namely, the city of Corbin. It is admitted of record that the city of Corbin has a population of 10,000; that the territorial limits of the city are partly in the counties of Whitley, Knox, and Laurel; that approximately one-third of the territory and population of the city is located in the county of Knox; that only a small part of the territory embraced in the city and a few hundred of its population is in the county of Laurel; that about two-thirds of the population and practically all of the business part of the city, including the public buildings, is in the county of Whitley. On these facts we hold that the county of Whitley has not therein a city of the third class, and therefore Corbin is not entitled to terms of court. It is only when a county has entirely within its borders a city of the third class that such a city will be entitled under the statute to have held there at terms of the circuit court. Wherefore the writ of prohibition is made permanent, and Judge Rose is permanently enjoined from holding any terms or parts of terms of the Whitley circuit court in the city of Corbin. SAMPSON and CLARKE, JJ., not sitting. WOLF V. TERMINAL R. ASS'N OF (Supreme Court of Missouri, Division No. 1. April 10, 1920. Motion for Rehearing Denied June 2, 1920.) them on a gondola, or flat car, which stood immediately north of the furniture car on a track parallel to that on which the furniture car stood. This enabled appellant and his helper to "loosen up" other crates in the furniture car so they could load their wagon at the south door. This they did, but left room on the wagon for the two crates they had 1. Master and servant 302 (1)-Scope of transferred to the gondola car. They then employment defined. furtherance of his master's business. went to the gondola car and were about to Whether a servant's act causing injury to unload from it the two crates they had a stranger was within the scope of his employ-placed upon it, when one of respondent's ment is not determined by the time nor his switching crews came up, and one of them motive, but the question is whether the act was done by virtue of his employment and in said, "We are going to cut out those cars." Appellant replied, "All right, we have got two crates in there and we will take them out and put them on the end gate of my wagon;" and then lifted the lighter crate over the side of the car and "slid it down" the side to the ground. One of the switching crew then said, "Wait a minute, I'll show you an easier and faster way than that; you won't have to leave it off that end;" and he then pulled some pins or hooks out of the end of the car and "kicked it over and let this end down, but they didn't come all the way;" and the switchman then stepped upon the end and on into the car and said, "That 2. Master and servant 302 (2)-Switch men lowering car gate to accommodate third person held not within scope of employment. Where one unloading a box car placed a crate upon a gondola car on a parallel track and was injured by the fall of the tailgate of such car, which had been lowered by switchmen to facilitate the unloading of the gondola before they moved it, their act in lowering the gate was not within the scope of their employment; it operating to retard railroad's business rather than to aid it. Appeal from St. Louis Circuit Court; Ben- is as far as it will go; let's go in and throw jamin J. Klene, Judge. Action by Herman Wolf against the Terminal Railroad Association of St. Louis. From an order overruling a motion to set aside an involuntary nonsuit, plaintiff appeals. Affirmed. it over." This car end or tailgate was as wide as the car and as high as its sides (31⁄2 or 4 feet), about 3 inches thick and iron bound. The gate was not down on the car floor, but lacked about 12 or 18 inches of it. Appellant saw it was lying at an angle. He and his helper and one of the switchmen Brownrigg, Mason & Altman, of St. Louis, then "tipped" a 200-pound crated table over for appellant. on this gate. Appellant stood very near to J. L. Howell and W. M. Hezel, both of St. it. When the weight of the table came upLouis, for respondent. BLAIR, P. J. This is an appeal from an order overruling a motion to set aside an involuntary nonsuit taken by appellant in an action he brought for damages he alleges he received when a tailgate, or end gate, in one of respondent's cars fell upon his feet while he was moving a piece of furniture out of the car. Appellant testified he was a furniture mover in the employ of Lammert Furniture Company, and was sent, with a helper, to remove the furniture from one of respondent's box cars which stood upon a track in its yards. The team track was on the south side of the car. When the south car door was opened it was disclosed that the furniture car had been loaded from the other side and some of the furniture on that side would have to be moved before the crates next the south door could be loosened and taken out. Appellant's helper opened the north door of the car, and he and appellant lifted two crates of furniture out of that door and placed on the gate it fell and injured appellant. No one made any investigation to see whether the door would go down nearer the floor. Appellant had never seen one of these tailgates put down before. It was "just a gate on hinges" which "folded" to the inside of the car to which it was attached. Appellant contends the act of the switchman was within the scope of his employment and was negligent. Respondent contends otherwise, and also insists appellant was guilty of negligence as a matter of law. Hinkle v. [1, 2] The fact that the act was done during the time of the servant's employment is not conclusive, nor is the motive of the servant so. The question is, Was the act done by virtue of the employment and in furtherance of the master's business? kailroad, 199 S. W. 227. "Whose business was being done and whose general purposes were being promoted?" Maniaci v. Express Co., 266 Mo. 633, 182 S. W. 981. Was the servant acting in the line of his employment about his master's business and seeking to accomplish his master's purpose? Whiteaker Mo.) SCOTT v. THOMPSON SCOTT et al. v. THOMPSON. 115 v. Railroad, 252 Mo. 438, 160 S. W. 1009. These and other cases cited by appellant announce the general rule as heretofore expressed in this state, but the facts of the cited cases are not such as to shed much (Supreme Court of Missouri,_ Division No. 1. light upon the question whether the rule is April 10, 1920. Rehearing Denied June 2, applicable to the facts of this case; and that 1920.) is the only question the briefs present in this connection. I. Partnership 92-Partner not entitled to participate in profits of individual transaction. Where partners constructed a railroad un and defendant to furnish capital, plaintiff had not 336 (3)-Transaction shown to be outside partnership business. In an action by a partner in a construction that a certain amount of money paid for propfirm for an accounting, held under the evidence erty to be used in the construction of a railroad was not in fact a loan by defendant partner outside of the partnership business, but was a partnership transaction, and profits arising therefrom were profits of the partnership. 3. Partnership 336 (3)-Transaction one within partnership business, entitling plaintiff partner to participate in profits. held It is not contended the switchmen were charged with any general duty relating to the unloading of cars. Appellant's contender a contract, plaintiff to oversee the work tion is that the evidence tended to show that they undertook to aid him in order to hasten the accomplishment of their purpose, and duty, to take out a car which stood back of the gondola car upon which he and his helper had placed the two crates of furniture, in the unloading of which the injury was inflicted. Appellant placed the crates upon the gondola car without authority and at his own risk. The switchmen were under no obligation to aid him in their removal and owed him no duty to wait for their removal before moving out the car they sought at the time. They were free to proceed with their switching and allow appellant to wait until they returned the gondola car before removing the crates therefrom. The presence of the crates constituted no obstacle to the switching operations. In this situation they determined to delay the master's business until appellant could accomplish his purpose of removing the crates. They were in fact not performing their work in so doing but were merely accommodating appellant. The effect of this was not the furtherance of the master's business but the temporary suspension of it for the accommodation of appellant. It is true, after the switching crew suspended their operation to await appellant's removal of the crates from the gondola car, that the quicker the crates were removed the quicker the crew could resume the master's business; but the fact that they did temporarily suspend the performance of that business for appellant's benefit makes it clear that the switchmen were not at the time, and in the act done, serving the master, but had stepped aside therefrom, and their acts in In an action for an accounting, where the aiding appellant were therefore not acts for partnership was not a general partnership, and which the master was responsible. 1 Thomp-its to be divided at the completion of the work each contract was a separate undertaking, profson on Negligence, § 526; 1 Shearman & Red-on each contract, court did not err in allowing field on Negligence, § 147. To bind the mas-interest on one-half of profits in defendant's ter it was necessary that the acts "pertain hands on the completion of each contract until to the duties of the employment." Snyder the date of dissolution of the partnership, in V. Railroad, 60 Mo. 413; Walker v. Railroad, view of defendant's failure to make settlements 121 Mo. 575, 26 S. W. 360, 24 L. R. A. 363, on the completion of the separate contracts. 42 Am. St. Rep. 547. This disposes of the case, and other questions need not be discussed. The judgment is affirmed. A furnishing of money for tanks and pumps on a railroad line under construction by a partbeing allowed by the railroad as compensation ner in a construction firm, a certain percentage for the advance, held, under the evidence, a partnership transaction, and the profits belonged to the partnership. 4. Partnership 336 (3)—Evidence held to show partner did not waive profits arising out of railroad construction contract. In an action by partners for an accounting, evidence held to sustain a finding that plaintiffs did not waive right to profits arising out of a certain railroad construction job. 5. Partnership 308-Interest allowed partner in accounting on items due on termination of different jobs. 6. Partnership 308-Interest properly allowed in an accounting. In an action by a partner for an accounting, where plaintiff was entitled to interest on certain amounts due at various times under separate contracts up to date of dissolution of the All concur, except WOODSON, J., absent. partnership, held, in view of the fiduciary rela For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes tions between the parties and equitable features arising out of the facts of the case, that court did not err in striking a balance as of date of dissolution, including interest, and then allowing interest on the whole amount until the date of judgment. 823.76, with interest from the dissolution of the partnership, September 23, 1913. Both plaintiffs and defendant excepted to the report. The court disallowed one $2,500 item included in the account against defendant, and overruled all other exceptions. Plain7. Partnership 333-Partner donated money tiffs and defendant appealed. Separate abby third person entitled to same on account-stracts and briefs are filed on the appeal and ing. cross-appeal. Where it was defendant partner's duty, as between the partners, to keep the books and do the office work, and contract of the partnership with a railroad for which it was constructing a road did not obligate it to pay any of the bookkeeping or office expenses, and for some reason it saw fit to pay defendant a certain amount to cover the expense incumbent on him alone, the other partners were entitled to no part of such money, in an action for an accounting after dissolution. 8. Partnership 333-Partner on accounting allowed value of services of accountant. In a partner's action for an accounting after dissolution of a partnership under which it was defendant's duty to keep the books and pay therefor, plaintiff was entitled to an allowance for one-half the reasonable value of the services of an accountant employed by him to bring the books up to date; defendant having failed to do so. 9. Partnership 336 (3)-Defendant partner entitled under evidence to interest on vouchers for capital advanced under firm agreement. In an action by a partner for an accounting, held, under the evidence, that defendant was entitled, under the firm agreement to interest on vouchers given to the partnership in consideration of his advancing all the capital. 10. Partnership 308-Partner allowed legal interest on accounting not entitled to interest earned by money. The parties were residents of St. Louis. Both long had been engaged in railroad construction, plaintiffs under the name of John Scott & Sons, and defendant under his own name. They were on friendly terms, and previously had worked together. Plaintiffs were more experienced in grading, track construction, etc., and defendant had given more attention to erecting depots, terminals, and the like. Defendant was a man of large means, and plaintiffs, according to defendant, were but very modestly, indeed, supplied with worldly goods. The first contracts for work under the partnership arrangement involved in this suit were made in May, 1910. There were five separate projects undertaken by the parties. The facts relevant to the several questions require separate statement and consideration. I. Defendant challenges the allowance to plaintiffs of a share of the profits in one transaction involving the use of $112,429.13 in connection with the construction of the Stephensville North & South Texas Railway Company. He contends the money was loaned by him, and that this loan had nothing to do with the construction contract under which he and plaintiffs, as partners, were building the line of that road. In April, 1910, defendant learned that certain railroad construction work was in con In an action by a partner for an accounting, where court allowed plaintiff legal interest at 6 templation, advised John R. Scott thereof, per cent. to cover his loss or damage by reaand suggested that they undertake the work. son of defendant's wrongful retention of the In advance of a consultation with the railfunds of the partnership, court properly reroad officials, defendant and John R. Scott fused to make plaintiff an allowance on account agreed together to submit a bid on a unit of interest paid by a bank on daily balances on basis, on the theory that the work would be money of the firm in the hands of the defend-paid for as it progressed, and agreed they ant. would advance equal shares of the relative Appeal from St. Louis Circuit Court; Wm. ly small capital which, on such a basis, M. Kinsey, Judge. Suit by John R. Scott and another against John W. Thompson for an accounting. From a judgment, both parties appeal. Reversed and remanded with directions. would be required to carry the work. They were later advised that the railroad was un able to finance the undertaking in this way, and desired the contractors to do so and carry the expense until bonds of the proposed line could be marketed. This required a new Kinealy & Kinealy, of St. Louis, for plain- arrangement between defendant and Scott. tiffs. Marshall & Henderson and Jourdan, Rassieur & Pierce, all of St. Louis, for defendant. BLAIR, P. J. This is a suit in equity for an accounting between partners. The cause was referred. The referee recommended judgment for plaintiffs in the sum of $36, It was agreed between them, so far as concerns four of their joint ventures, that defendant "was to finance the work and attend to all matters relating thereto that could be attended to in St. Louis, including making purchases, hiring the men, furnishing the money, settling with the railroad, etc.. and that plaintiffs were to furnish no money or capital, but were to look after and su (222 S.W.) perintend the work." (This quoted state- "It is further understood that all payments ment is taken from defendant's brief.) With to be made under this proposal are to be guarthis understanding of the matter between anteed by the St. Louis Southwestern Railway themselves, and of the railroad's desire that Company of Missouri. [Signed] Thompson & the contractors were to finance the work, Scott, by J. W. Thompson. plaintiffs and defendant, under the name of Tex. Ry. Co. by B. C. Cage, President." "Accepted for Stephensville North & South Thompson & Scott, on May 12, 1910, entered into a contract with the Stephensville North & South Texas Railroad Company, as follows: "St. Louis, May 12, 1910. "Stephensville North & South Texas Railway. We, the undersigned, hereby propose to do all the clearing, grubbing, earth excavation and embankment, loose and solid rock excavation, necessary in connection with the construction of a line of railroad from Gatesville, Texas, to Hamilton, Texas (and if decided to be built, a line from Hamilton to Comanche), and will frame and place in position all timber trestles, mix and place all concrete work, place all drains (wood, tile, or cast iron pipe as may be necessary), and will furnish all labor and erect all depots, station buildings and outhouses, water tanks and turntables, and will furnish labor and construct all right of way fences; and, if required, will purchase all or any part of right of way lands required for depots, station buildings, outhouses and other necessary facilities, and will do any or all other work and furnish any or all material that may be necessary to complete the proposed line of railroad between the points above mentioned; all of such work to be done in accordance with the specincations heretofore agreed upon, and in compliance with plans furnished by your company, to the full and complete satisfaction and acceptance of your chief engineer; or, in the case of station buildings and work other than that properly classed as engineering, to the satisfaction and acceptance of such representatives as you may designate; such work to be completed within six (6) months from the date hereof, it being understood that your company is to furnish all bridge timbers, lumber, piling and other articles required in connection with the trestles to be constructed, right of way fences, as well as necessary rail, fastenings, switch material and other fixtures required in laying the track between the points hereinabove mentioned. "We propose to furnish all labor required to complete the work as above outlined, and such material as may not be furnished by your company, at actual cost, to which shall be added fifteen per cent. (15%). "Your company to furnish us by the fifteenth (15) of each months, estimates to cover the work done during the preceding calendar month. "We agree to carry estimates, if desired by your company, until final completion of the work as hereinabove set forth, until the completion thereof, said estimates to bear interest at rate of five and one-half per cent (52%) from the fifteenth day of the month following that for which they are made to cover, your company to agree that you will not delay the work of securing right of way, engineering features, or delivery of material to be furnished by you, but will have all such items looked after, right of way secured, grade stakes, etc., furnished and material delivered at such time as will not cause us delay in the completion of the work. On the same day a contract identical in legal effect was entered into with the Central Arkansas & Eastern Railroad for con& South Texas Railway Company (hereafter struction for it. The Stephensville North referred to as the Stephensville Company) was a Texas corporation, and its line was wholly within that state. The Central Arkansas & Eastern Railroad (hereafter referred to as the Central Arkansas) was an Arkansas corporation, and its line was wholly within that state. The guarantor company, the St. Louis & Southwestern Railway Company of Missouri, was a Missouri corporation and owned lines in Missouri and Arkansas. It will hereafter be referred to as the Missouri Company. The St. Louis & Southwestern Railway Company of Texas (hereafter referred to as the Texas Company) was a Texas corporation, and owned lines in that state. On May 12, 1910, F. H. Britton was vice president and general manager of the Missouri Company and president of the Texas Company. These two companies were jointly known as the "Cotton Belt." The Stephensville road was designed to be a sort of subsidiary of the Texas Company, and was subsequently operated under a lease to it. owned by the Missouri Company. The CenThere is evidence the latter road was tral Arkansas was designed to be a subsidiary to the Missouri Company. All these corporations were separate and distinct entities. Concerning the major part of the work under the Stephensville contract, there is no controversy. ship profits aggregating over $102,000. The Defendant concedes partnerprincipal item in dispute in this connection is the sum of $16,864.37, which plaintiffs contend are partnership profits arising from the purchase, under the contract, of rail, fastenings, switch material and switch ties, in the sum of $112,429.13, which were used in the construction of the line under the Stephensville contract. Defendant contends he loaned the $112,429.13 either to the Missouri Company or the Texas Company for use by it to purchase new steel rail for its own purposes. On August 18, 1910, defendant wrote John R. Scott (then on the Stephensville line), among other things, that Britton "mentioned that he might want us to buy some rail." About March, 1911, the arrangement was made which is drawn in question by this assignment of error. The documentary evidence will be stated first. On March 15, 1911, the Texas Company made out its bill against Thompson & Scott for rail, rail fastenings, |