I cannot agree with the majority opinion. Mrs. Rempke, a disinterested witness, gave the following testimony in regard to a conversation between the Windells and Mr. Montgomery, brother-in-law of the witness, at the home of Mr. Montgomery:
"They told about them getting married, and their experience about getting married, and what they done after they did get married. They Said that when they got married that Mr. Windell owned a little farm, and an old livery stable, and he said that, Mrs. Windell had about $5,000 and they hitched the old horses to the $5,000.00 and started in business together on a 50-50 basis and in case that business was to be dissolved, or was to be dissolved, it was never to go from one party to the other, but it was to go to the exclusive heirs of each. It was an old song. It was a common conversation with them, about how they were in partnership together for life and death, and on a 50-50 basis. Mrs. Windell joined in the conversation and she said that was the way that they agreed, regardless of whose name the property was in."
Mrs. Rempke also testified that the Windells, in 1934, modified their original contract and agreed that "if Mrs. Windell died first Mr. Windell would have the use of the property until he died and it would then go to their respective heirs." From 1910 to 1931 mortgages were taken in the name of Emma Windell in an amount exceeding $60,000. At the time of her death title to all their property, with minor exceptions, was in Edward Windell. The Windells listed moneys and credits for assessment only a few times. The record shows that in 1934 they listed securities for taxation in the name of Edward and Emma Windell in the sum of $14,000. All of the above testimony is omitted from the majority opinion. The statement in the majority opinion that Mrs. Windell did not exercise any dominion *Page 432 or control over the partnership property is contrary to the record. The statement in the majority opinion that there is no evidence that the parties to the alleged partnership agreement undertook to share in any losses overlooks the rule that if the evidence shows a community of interest in capital and profits, mutual liability for losses will be implied in the absence of evidence of a contrary intention. Citizens Bank of Milo v. Scott Son, 217 Iowa 584, 250 N.W. 626.
The majority opinion rests to a considerable extent on the gratuitous and perhaps unfortunate statement of appellees' counsel in argument relative to usurious transactions by the Windells. The question of usury or conspiracy was not raised in the lower court nor on appeal by appellants. The sole issue presented by appellants on this appeal is whether or not there was a partnership. The following statement in the majority opinion "from the foregoing, the transactions which appellees assert indicate a conspiracy, rather than a legal partnership" is unwarranted.
The testimony of appellees' witnesses in regard to the terms of the partnership agreement, as told by the Windells repeatedly from 1896 to 1936, is clear and unequivocal. There is nothing in the record that tends to impeach these witnesses.
In In re Estate of Rich, 199 Iowa 902, 916, 200 N.W. 713, 719, it is stated:
"It is true that declarations or admissions deliberately made, clearly remembered, and correctly given, are often satisfactory evidence. But the human mind and memory are subject to much imperfection; and such declarations, made years before, not clearly remembered or accurately stated, should be cautiously received."
Appellees' case does not rest solely on admissions made in 1896. There is satisfactory evidence of like admissions made in 1909, 1930 and 1934. We find nothing in the record to justify the conclusion that plaintiff's witnesses are unworthy of belief. Several reputable witnesses, without any possible interest in the case, gave testimony that satisfactorily establishes the elements of a partnership. On the question of the credibility of appellees' witnesses, the trial court must have found their *Page 433 testimony clear, satisfactory and convincing for he gave full weight and credence to their testimony, the decree adopting in detail all the material evidence of these witnesses.
I am of the opinion that the evidence of appellees meets the requirements of the strict rule correctly stated by appellants and that the trial court was right in finding a partnership was formed in 1896. Edward and Emma Windell made repeated declarations to their friends that they had formed a partnership, that they had contributed all the property they severally owned to the partnership; that it was to be equally owned whether taken in his or her name. They shared in the profits. Mrs. Windell participated in the affairs of the partnership. The evidence establishes a community of interest in the capital employed, a community of power in administration, a community of interest in the profits and, by implication, a mutual liability for losses. It is well settled that if the evidence shows a community of interest in capital and profits, mutual liability for losses will be implied in the absence of evidence of a contrary intention. Citizens Bank of Milo v. Scott Son, 217 Iowa 584, 250 N.W. 626; Farmers Merchants Nat. Bank v. Anderson, 216 Iowa 988,250 N.W. 214.
The facts that Windell brought suits relating to property to which he had title in his name; that Mrs. Windell did likewise; that they did not advise their attorneys of the partnership relation; that they did not carry on the business in a partnership name; that there was no partnership bank account, are of no material significance in view of the evidence satisfactorily proving that they formed a partnership soon after they were married.
As stated, at the time of the death of Mrs. Windell, title to the property was in Windell. It is true, as contended by appellants, that appellees had the burden of overcoming the presumption of ownership arising from the legal title to property. To overcome the presumption arising from his legal title that Windell owned the property individually, and to establish a resulting trust for the partnership, the evidence must be clear, satisfactory and convincing. Wagner v. Wagner,208 Iowa 1004, 224 N.W. 583; Smith v. Smith, 179 Iowa 1365,160 N.W. 756. This presumption was overcome by proof of the partnership *Page 434 which provided for taking title to partnership property in the name of the individual partners.
I would affirm the decree of the trial court which divides the partnership property between the heirs of Mr. and Mrs. Windell. The majority opinion fails to give the finding of the trial court that there was a partnership the weight it was entitled to in a case of this kind. Hatheway v. Hanson, 230 Iowa 386,297 N.W. 824.