Caldwell v. Wright, 88 Mo. App. 604

Caldwell v. Wright

88 Mo. App. 604 | Mo. Ct. App. | 1901

BOND, J.

The learned trial court rendered a personal judgment in this ease against the defendants for the value of the remaining one-half interest in the property acquired by them after deducting a small sum applied to the joint indebtedness of the original joint owners of the property. The specific prayer of the petition was for the partition between the plaintiff and defendants, as joint owners respectively, of certain described personal property. Such a proceeding is authorized by statute. R. S. 1899, sec. 4432 et seq. The petition, however, contained a prayer for general relief. When this is the case, *611the plaintiff is entitled to all or any redress which the facts set forth in the petition would authorize. In this case, the allegations of the petiton would warrant a recovery for the value of plaintiff’s one-half ownership in the property described, if defendants have appropriated the entire property, or its entire proceeds, to their exclusive use and benefit, and plaintiff would be further entitled to charge the other one-half interest in said property, or its proceeds, in the hands of defendants, with any valid lien existing in his favor against the vendor of the defendants, which was known to them at the time of their purchase, or of whose existence they were put upon legal inquiry. This equitable feature in 'the ease at bar, coupled with the necessity, as shown by the pleadings, for the examination of a long account, invested the trial court with the power to send the case to the referee, whose findings upon the evidence, as well as those of the trial court, upon exceptions to his report are properly reviewable on appeal. R. S. 1899, sec. 698; Bond v. Finley, 74 Mo. App. loc. cit. 25; Small v. Hatch, 151 Mo. loc. cit. 307. Proceeding, therefore, to make our own finding according to the preponderance of the evidence, the first question for ascertainment is, whether or not the plaintiff had any specific lien or equitable charge upon the one-half interest in the property owned by Renfro, the vendor of the defendants. Certainly no such right grew out of, or was connected with, the stipulations of the original written contract between plaintiff and Renfro, for the terms of that agreement simply charged the one-half interest in the stock then bought, with a lien for the note given in part payment of the price; whereas, the stock in controversy in this action constituted no part of those first purchased by Renfro. It is apparent, therefore, that the original written contract gave plaintiff no right to the lien which is the present subject of inquiry. Nor, is it claimed that the record presents any other written evidence of such *612lien. It is true, plaintiff, in testifying for himself, uses the following language: “Eor the additional money I paid out I understood that the original cost was to be paid and whatever was left was the property of us equally.” Conceding for the argument only, that this statement furnished a basis for an inferable contract fixing a lien upon^he one-half interest of Renfro in. the property "subsequently bought for their joint account and paid for in whole by plaintiff to the extelnt of reimbursing the latter, still it was wholly insufficient to charge such lien upon the property in the hands of the defendants in view of the utter dearth of evidence that they had any notice of this unadjusted indebtedness of their vendor at the time they bought the stock from him. Moreover, the foregoing statement of plaintiff is flatly contradicted by the testimony of Renfro. We accordingly find that the record herein fails to show any equitable lien or charge in favor of plaintiff on the onAhalf interest in the property which was owned by Renfro at the time he transferred the same to defendant. It results that there can be no recovery in this action for the appropriation to themselves by defendants of such one-half interest in the property. But, the undisputed evidence shows that the other one-half interest in the stock was owned by plaintiff. He was, therefore, entitled to recover the value thereof, if the defendants have converted the same to their.own use, unless the evidence sustains the affirmative • defense in the answer, that the defendants in good faith and without notice purchased the property in controversy from a vendor (Renfro), clothed with authority to sell. A careful consideration of the entire evidence satisfies us that plaintiff gave such ostensible authority to Renfro by a continuous course of dealing, and that defendants purchased the property from him without notice óf any fact or circumstance sufficient to charge them with the duty of seeing to the application of any part of the purchase price. The *613record teems with evidence that for more than three years preceding the present transaction, Renfro, either by precedent, written or oral authority, or subsequent express ratification on the part of plaintiff, made sales of the joint property owned by them to the aggregate of sixty-four hundred and fifteen dollars and forty-nine cents, and that his power and authority thus to do was well known and acted upon in the community where he lived. The record fails to show that plaintiff ever notified either of the defendants of the “cessation of the authority thus conferred by him; nor, is there any substantial evidence in the record that defendant Radford, who purchased the property in dispute for himself and his co-defendants, had any knowledge or information whatever that plaintiff was entitled to any interest therein, as joint owner or otherwise. The record further shows that Radford paid the full price of the property so purchased by check, which was honored and the proceeds placed to the credit of Renfro- While it is true Renfro did not apply the bulk of the money thus received to the joint indebtedness of himself and plaintiff, the vendees can not be held liable in the present action for this misappropriation. This is not a suit to wind up a co-partnership and to collect co-partnership assets for the benefit of co-partnership creditors, and, hence, the power of working out a prior equity in favor of such creditors through the medium of the partners themselves in an appropriate proceeding, is not before us for decision.

It follows from what has been said that the learned circuit judge erred in sustaining plaintiff’s exceptions to the report of the referee, and in refusing to dismiss the petition as recommended in said report. The judgment herein is reversed and the cause remanded, to be disposed of in conformity with this opinion.

All concur.