Carlin v. Haynes

74 Mo. App. 34 | Mo. Ct. App. | 1898

Bland, P. J.

— This suit originated before a justice of the peace on the following account:

Purdy, Mo., Jan. 19th, 1897.

W. Gh Haynes to Jed Carlin, Dr.

To 186 bushels and 21 lbs. wheat at 80 cents per bushel, May 27th, 1895.................................................$149.00

To interest on same from May 27th, 1895....................... 14.00

To money loaned December 7th, 1895......................... 50.00

To interest on same.......................................... 3.25

$217.15

After taking a change of venue the defendant filed a counterclaim of $140 for chopped feed, drayage and hauling, and for accounts assigned by the defendant to plaintiff. Plaintiff recovered judgment before the justice, from which defendant appealed to the circuit court. In the circuit court the cause was tried before the court without a jury. Plaintiff again recovered judgment, from which, after an unsuccessful motion for new trial defendant appealed.

On the trial the defendant admitted that he purchased $149 worth of wheat on May 27, 1895, and that he afterward borrowed $50 in money of him. On these admissions plaintiff rested his case. The defendant to sustain his counterclaim testified that on August 1, 1895, he and the plaintiff went into partnership in the mill business, and that when the partnership was formed he paid plaintiff $138.48 in stock in the mill, and that he had let plaintiff have mill feed and done hauling for him and transferred to him account from February 8, 1896, to September 8, 1896, amounting to $136, no part of which had been paid. The witness went into the terms of the partnership, giving invoice of stock, etc., on hand and stated that the wheat he got from plaintiff was paid for by stock in the mill, and further showed that a great part of his counterclaim arose out of the partnership business, which it appears has never been settled.

„ . . , The court seems to have taken into consideration all matters in dispute between the parties and found on an adjustment of their individual and partnership accounts that defendant owed the plaintiff $100.80. The defendant complains of this action here. It is well settled that an action at law by one partner against another on an unsettled partnership account will not lie. The plaintiff’s account is not such an action. The wheat was sold to defendant before the partnership was formed, and the $50 was loaned to him after it was dissolved. It was the defendant who introduced by his counterclaim and by his evidence the unsettled partnership affairs between plaintiff and defendant, and this, too, over the objections of plaintiff. A party to a suit can not invite error, consent to error on the trial of a cause and afterward be heard to complain of such error on appeal. He can not introduce irrelevant evidence and afterward complain that the court erred in permitting him to do so. The finding of the circuit court is not unsupported by the testimony in the case, as contended by appellant; on the contrary, we think the judgment under the evidence is for the right party, and we affirm it.

All concur.