
    Coogle v. Lehan’s Adm’r et al.
    Nov. 16, 1943.
    Jones, Keith & Jones for appellant.
    Crawford, Middleton, Milner & Seelbach for appellees.
   Opinion op the Court by

Judge Cammack

Affirming.

L. E. Coogle is challenging the correctness of the ruling of the chancellor to the effect that the following writing is a partnership agreement and not a mortgage:

“Articles of Partnership
“Between Dan Lehan and Lewis Coogle

“From this date April 23rd. 1941. Until this agreement and contract distroyed which will be when our stable win the amount to repay Lewis Coogle the Amount of Twelve Thousand Dollars which I Dan Lehan His Race Stock Name. Our Mary Jacquelyn Coogle. Yerda French Dr. Coogle. Mary Seibert. Emma June. Ekrub. Kitty O.Connell. His tack and stable etc. which I sold and put back into the present Stable and expense. I Dan Lehan make Lewis Coogle and equal Partner in all stock. Stabled at the Downs and the Brood Mares on my farm on Watterson Lane and Mare on Lewis Coogle farm on Nat Pike All Yearling and Foalds and Foalds to come. Except the Cripple Mare which I own Dan Lehan. All Money Paid to Lewis Coogle put on back of this Contract, when the sum is pay Dr. Coogle will Have no more. Partnership in Horses. For the Contract Lewis Coogle turn over to Dan Lehan on Jockey H. Chinn and S Erwin. The Brood Mare Granis ans Brown Wing is Lewis Coogle Personal Property. I Dan Lehan has No Strings on them at all. I Dan Lehan to Train all Horses Hire and discharge Help take care all Money pay all Bill. etc. In Case of Lewis Coogle I Dan Lehan to act as Administrator for his wife and in case of Dan Lehan Death. Take this contract to Church. Humphrey of Charley Middleton, and either one will See the right thing is done. I Dan Lehan Will Train Present Stable with out and Salary. And For Lewis Coogle Part He will send what hay and straw Corn what he can spare from his farm. Like in the past. And t Put Three Hundred in Cash in Stable to Ship on abount May 14th 1941. This Makes Dan Lehan and Lewis Coogle Fifty Fifty Partners, as Abouve Stated.

“Until Now Lewis Coogle and I Dan Lehan Gentleman Agreement about our Stock last Sunday Mrs. Lehan throwed A fit when talking to Lewis Coogle. Not known he Own Half of My Stock. When Alex Humphery Willed me Dan Lehan His Horses and Colores. Give Lewis Coogle First Crack at Buying My Part. If I Die First. But who Ever Buy the Stable they Must agree to Always Sport Alex Humphery and My Dan Lehan Colors. Purple and Cerise.
“This is our Agreement, and we both Dan Lehan and Lewis Coogie must live up to it.

In case we disagree and cannot come to a agreement we both agree to Let Church Humphry to act as third man and take his dission on this Partnership.

“Judge Church Humphrey, being the brother of the Best friend I or and Man ever had (Mr. Alex Humphrey Jr.) I Dan Lehan Picked Church as the best Man to act in case of a disagreement.
“Judge Humphery and I were- Class mate taken the 32.0 Degree Mason together, and he will be Ac-, eepted on my part (Lewis Coogie)
“If Lewis Coogie Dies Before we Get a Good Horse and this is payed it no need to go to Church Humphry I Dan Lehan will take care of every and Lewis Coogie Widow will Get every Bed Cent.
“If I Dan Lehan Dies First Go to Church Humphery at once. If Church Humphery is dead go to Charley Middleton.
“Dan Lehan “L. E. Coogie
“Witness:
“James B. Newhouse
“W. P. Martin”

The instrument was prepared in Lehan’s own handwriting, and a friend of his typed it at one of Coogle’s stores. While it is crudely drawn, and contains many awkward expressions, we think it clearly sets forth a partnership arrangement between the parties. Indeed, the writing is headed “Articles of Partnership.”

Coogie contends vigorously that Lehan obligated himself under the writing to pay him $12,000, and he is entitled to that amount rather than to one-half of the proceeds of the sale of the stable and tack, which amounted to some $4,400. As we have indicated, however, we do not think the instrument lends itself to that interpretation. For some years prior to 1941, Lehan had raced Coogle’s horses. The venture was an unprofitable one, and, unquestionably, as the writing under consideration shows, the parties entered upon a new venture. The first sentence of the writing shows that the $12,000 payment was to be made “when our stable win the amount.”

We can not refrain from saying that, by happenstance or otherwise, the very person whom Lehan and Coogle agreed upon to settle any difference which might arise between them was called upon finally to construe their writing. It reveals both parties had complete confidence in Judge Humphrey, and we are convinced from our review of the whole record that their confidence was well placed. Since we concur in the conclusions reached by Judge Humphrey, we quote them:

“For many years prior to April 23,1941, Dan Lehan and Doc Coogle had been race horse associates. On that date the two executed a writing which is before the court for construction. Dan is now dead. The court is asked to say by the terms of the writing referred to (1) whether Dan’s estate owed Doc $12,000, or (2) whether Doc is entitled to one-half the proceeds of the sale of certain horses and no more.
“The learned commissioner concluded that the writing bound Dan to the payment of $12,000, in any event, and that therefore Doc might recover that sum from Dan’s estate as a debt due and owing. I am afraid I cannot concur in this conclusion. It seems to me that the $12,000 was to come out of that pot of gold which lies at the foot of the rainbow showing its colors before every race meet.
“For some years. Dan had trained Doc’s horses. He had not prospered. One by one the horses had had to be sold to get money enough to continue with the others. No Whirlaway appeared on the track, no Man O’War in the paddock. Always the Gremlin rode with Doc’s colors. Finally Doc’s horses were all gone — every one of them. But the rainbow was still there. At its foot lay the pot of gold. The parties organized a second expedition to search out the foot of that rainbow; they signed the articles of April 23, 1941, now before the court for construction.
“This time Dan put up the horses. As Dan had dissipated Doc’s racing stable this time Dan gave Doc an interest in Dan’s own horses. But the interest was a limited one; it was a mere right to the first $12,000, that came out of the pot of gold uncovered by the flying hoof of one of Dan’s horses. Certain other details were arranged: Dan to train the horses and generally carry the enterprise; Doc to retain half interest in the horses until he got the $12,000; sundry small help from Doc like a shipping charge and hay from his farm. Those details were tangible. But the $12,000 was coined from the stuff with which dreams are made.
“The contract was a gambling contract entered into by race horse men. It wasn’t the least illogical. It wasn’t the least unusual. After all, as Dan had lost Doc’s horses, it was only fair that he should race with his own. I do not think from the evidence that the Doc’s lost horses were worth any $12,000, nor any big fraction thereof. But on the other hand the odds against the new stable’s producing a $12,000 winner were pretty long. Yet if the stable did produce a $12,000 horse,- the odds were the other way that such horse would win a great deal more. Hence, if the new enterprise failed to produce a winning horse the associates could tighten their belts as many a racehorse man had done before and will do again; but if the winning horse came forward Doc would get $12,000, at what I believe were good odds (certainly satisfactory odds) and Dan would grow rich on the balance. The pay off all around was to be from future winnings.
“These were race horse men. Would they have made other than a gambling contract? I think not.
“As the new stable failed to produce a winning horse, all Doc is entitled to is one-half of the proceeds of the sale of the losers.
“Ruling. — Counsel to draw judgment carrying the foregoing into effect, reserving exceptions and granting-appeal if desired.
“Apologia. — In justice to the parties I have tried to disassociate from the evidence hay memory of Dan Lehan — a memory clear in the affection I bore him. I doubt how well I have succeeded. For I cannot gather ■ from Dan’s obscure language anything other than his clear dream; a vision vivid in youth and undimmed in age tho never in this life fulfilled; the mental picture of a horse coming under the wire, leading the Derby field, and carrying Dan’s own colors.
“And I have not been able to approach this arrangement with Doc Coogle, Dan’s last venture, except in the mood suggested by Yeats when he wrote: ‘Tread softly for you tread on a dream.’ ”

Judgment affirmed.  