ON MOTION FOR REHEARING
PER CURIAM.Appellants have filed a motion for rehearing or, in the alternative, for an order transferring to the Court en Banc because this court erred in affirming the judgment, since the evidence in the record was insufficient to establish a partnership between Hallard Heald and Nick Erganian, in that the elements of the proposed partnership were not unequivocally and unconditionally agreed to by all the parties to the agreement without any variance between the propositions or conditions proposed by one and accepted by the others, citing Chapin v. Cherry, 243 Mo. 375, 147 S.W. 1084; Freeman v. Bloomfield, 43 Mo. 391, 392. The opinion sufficiently shows that the contract between the parties was in the nature of a “joint adventure” and it was entirely unnecessary for the evidence to show a partnership between the parties.
Appellants further contend that the court erred in affirming the decree ordering a sale in partition because “partition was improvidently ordered contrary to the provisions of Supreme Court Rule 96.20,” requiring the trial court to appoint commissioners. The opinion points out that Count 2 of the petition alleged and the evidence showed and the court found that partition in kind of said real estate could not be made without great prejudice to the parties in interest. Counsel has overlooked Supreme Court Rule 96.01 expressly providing that if partition cannot be made “without great prejudice to the parties in interest” a sale of the premises may be ordered, as was done in this case. See Laird v. Lust, Mo.Sup., 98 S.W.2d 768, 770[4, 5]; Joerger v. Joerger, 193 Mo. 133, 91 S.W. 918, 921.
Appellants again insist that “no evidence was adduced by respondent in proof of the allegations of Count Two of his petition, wherein partition of the lands in issue is sought.” Counsel overlooks the fact that the two counts of plaintiff’s petition and the counterclaim of the defendants were tried in a single proceeding before the court. The evidence showed, as pointed out in the original opinion, that the property consisted of one tract of four lots, subject to a purchase money lien for $1300, and the other tract consisting of two lots was subject to a purchase money lien for $2000, and that the several lots in each tract appeared to have been improved and used as a unit. Since the court further found that the respondent and appellant, Mr. Erganian, each had a half interest in the two properties and that Mr. Erganian owned the liens on the property, the record was entirely sufficient to sustain the court’s finding that “partition thereof in kind cannot be made without great prejudice to the parties,” and that the real estate should be sold in partition.
Appellants’ final assignment is that the court ignored appellants’ contention in their original brief, Point IV (e), wherein appellants complained of the trial court’s failure to impress a lien upon the proceeds of the partition sale in favor of appellants for the amount of their judgment on the counterclaim. The record shows that appellants’ counterclaim for $257.60 was for groceries sold and delivered to respondent, *444and that it had no relationship whatever to plaintiff’s action. No authorities have been cited authorizing this court to impress the proceeds of the sale of the property in partition with a special lien for the amount of defendants’ judgment against plaintiff for groceries, and we find none.
The motion for a rehearing or to transfer to Court en Banc is overruled.