57 Mo. 466 | Mo. | 1874
delivered the opinion of the court.
This action was brought in the Montgomery Circuit Court, in the year 1871, to recover the amount due on a promissory note charged to have been executed by the defendants to the plaintiff for the sum of four hundred dollars, bearing date the first day of October, 1860, and payable eleven months after date, with ten per cent, interest after the first day of March, 1861.
The defendants appeared to j;he action and filed an answer to the petition, in which they admitted the execution of. the note, and set up matters in avoidance of the action.
The plaintiff demurred to the answer, on the ground that it set up no defense to the action, setting forth in detail the special grounds of demurrer.
The court sustained the demurrer, and the defendants failing to further plead in the action, final judgment was rendered in favor of the plaintiff for the amount named in the note sued on, with interest. The defendants in due time filed their several motions for a new trial and in arrest of the judgment, which being severally overruled by the court, the defendants filed their several exceptions, and have brought the ease to this court by writ of error.
The only question presented to this court is, whether the answer of the defendants constituted any defense to the plaintiff’s action. If it did, then the demurrer to the answer was
The answer of the defendants is along one, and is rather confused in its statements, but after the admission of the execution of the note sued on, the answer sets up substantially the following facts in defense : That at the time of and immediately before the execution of the note sued on, the plaintiff and the defendants, Franklin and Clanton, were equal partners in the business of buying and selling goods; that previous to the formation of said partnership, plaintiff and defendant Franklin had been equal partners in said business that, at the time of the formation of the partnership between plaintiff and the defendants, Franklin and Clanton, the firm composed of plaintiff and defendant Franklin, were the owners of notes and accounts amounting to the aggregate sum of $800, which were, at the time of the entering into the partnership between plaintiff aud defendants, Franklin and Clanton, transferred and turned over to the last named firm for collection; that after the firm composed of plaintiff, Franklin and Clanton had been in business for a time, to-wit: on the 1st day of October, 1860, the plaintiff proposed to sell out.his interest in the firm aud business to defendants Franklin and Clanton, exhibiting to them at'the time a statement of the liabilities and assets of the firm, except the goods and merchandise then on hand, aud also a list showing the balance due and uncollected on the notes and accounts transferred to said firm by the firm of Bethel and Franklin as aforesaid ; the plaintiff then requesting that an invoice should be taken of the goods then on hand, which was taken and made out by the parties, and which amounted to the sum of $1,800; that the notes and accounts of indebtedness belonging to said firm, as per the statement made of them, also amounted to the sum of $1,800; that the uncollected notes and accounts assigned to said firm by the firm of Bethel and Franklin as aforesaid, amounted to the sum of $466.66, and that the liabilities of said firm amounted to the sum of $2,800 ; that after the invoice of the goods was made, as aforesaid, by
It is contended by the plaintiff that the court properly sustained the demurrer to the defendant’s answer, on the ground that the defendants, by their answer, ask to open up the settlement of a partnership account, and then to settle the partnership accounts in an action at law brought by one partner against the other partners, which cannot be done in an action at law, but can only be done by a bill in the nature of a bill in equity to settle the whole partnership business.
It will be seen that by this aiTangement plaintiff retained no legal title to any part of the effects of the firm of which he had been a partner. His interest in the notes and accounts was only such an interest as a .vendor of a horse would have in the horse sold, where he had given a warranty as to his soundness or qualities. The answer further charges that one of the accounts which had been turned over to Franklin & Clanton, as a part of the consideration of the note sued on, had been collected by plaintiff, and the money thus collected, amounting to $160, converted to the plaintiff’s own use. Surely the considei’ation of the note has failed to that extent, if that charge be true. It seems to me that although the answer was not concisely drawn, the defense, as stated therein, comes exactly within the principle enunciated by this court in the case of Russell vs. Grimes, (46 Mo., 410). And if the
The judgment will be reversed and remanded to the Circuit Court, where the plaintiff can withdraw his demurrer and reply to the answer, and the case proceed to trial.