102 Mo. 158 | Mo. | 1890
— In February, 1878, Timothy Moraghan,, James S. Simms and Patrick Bambrick formed a copartnership under the firm-name of Moraghan,.Simms & Co., for the purpose of building six miles of railroad under contracts with the Chicago & Alton Railroad Company.
In April, 1886, Bambrick and the administrator of Moraghan commenced this suit against Simms in the St. Louis circuit court to recover one-third of the losses sustained in the venture. The petition was at first based on an open account. In October, 1886, an amended petition was filed, upon which the cause was tried, which states that Bambrick and Moraghan paid the whole of the loss of the venture, namely, $24,069.59, on the thirtieth of September, 1878; that on that day the partnership accounts were adjusted; that the amount due from each partner was ascertained; and that Simms agreed to pay to Bambrick and Moraghan his share of the losses, that is to say, $8,023.17, which he had failed to do. In short, the amended petition
Moraghan, Simms & Co. entered upon the execution of their contract with the company about the first of March, 1878,. and during that and the following month made good progress, and were making money. In May the laborers struck, thus delaying the work. The engineer of the company concluded the work was not progressing fast enough, and under the powers vested in him by the contract placed one Henry on the work as the representative of the company. Henry procured men and teams at a heavy expense which was charged up to the contractors who still remained in the nominal charge of the work. The work was completed about the last of August. The creditors of the contractors, who had no lien on the railroad for supplies furnished, were demanding payment. Simms insisted that the-firm had not been fairly dealt with by the company that they were entitled to larger and better estimates than the engineer had given them. With a view of getting increased estimates the contractors, their bookkeeper, Henry and a committee of the creditors got together and made up a statement of the affairs of the partnership. On October 16, 1878, Moraghan and Simms took this statement to Chicago with a view of getting a settlement with the company ; but Moraghan declined to allow the company to examine the firm books, and thereupon the company sued the contractors for some $12,000, because of moneys alleged to have been paid out for them in excess of the contract price of the-work. Service was had upon Simms only, and it is agreed that that suit is still pending. Simms came back to St. Louis insolvent, and then went W est, occasionally returning to this state.
It is the statement of the firm affairs before mentioned, made in October, 1878, which plaintiffs rely
Where persons, who have had transactions together, close the accounts by agreeing to a balance which appears to be due from one of them, this will constitute an account stated. 1 Am. & Eng. Ency. of Law, 110 ; May v. Kloss, 44 Mo. 300 ; Railroad v. Kimmel, 58 Mo. 83; Lockwood v. Thorne, 62 Am. Dec. 81, note. But what does the statement relied upon in this case show ? It is a statement of the receipts and expenses of Moraghan, Simms & Co. in the work done under the contracts with the railroad company. It is nothing more or less than a balance sheet showing the then state of the firm affairs. Is is not, nor does it profess to be, a statement of the accounts of the partners as between themselves. If Simms agreed to the entire statement, still it does not follow that he then owed or now owes the plaintiffs the sum of $8,023.17.
But it seems to be urged that Simms, in October, 1878, and subsequently, agreed to pay the plaintiffs one-third of $24,069, and that he should pay them that amount in any event. Mr. Bambrick being asked what Simms said about his share of the loss said : “Nothing-except this : On the day he went to Chicago, he borrowed ten dollars of me, and he said ‘ there is a prospect-that I never will be able to pay you back this, or the amount of the loss on the contract, my part of it, but, if ever I am able to pay it, I will pay every dollar of the loss.’ ” We do not see how this language can make Simms do more than he was in duty bound to do, namely, pay his proper share of the losses.
When Simms was first served with summons, and a copy of the petition in this case, he went to the office