153 Mo. App. 292 | Mo. Ct. App. | 1910
This is a suit in equity for an accounting. Plaintiff sues the defendant, who, besides being his partner in a mill company, was also formerly a partner in the firm of C. G. Shepard & Company, which acted as agent for the mill company, and seeks an accounting with respect to a number of items set forth in his bill.
The court referred the matter to a member of the bar who heard the evidence, found the major portion of the issues for defendant and recommended a judgment for several hundred dollars in favor of him against plaintiff. On exceptions filed to this report, however, the trial court sustained the same and upon reviewing the matter, decreed an accounting in favor of plaintiff for several hundred dollars and from this judgment defendant prosecutes the appeal.
It appears iu May, 1893, plaintiff Grier, defendant Strother, and one, C. G. Shepard, formed a co-partnership for the purpose of conducting a saw mill business in Pemiscot county. Plaintiff Grier was possessed of no means but was experienced in the saw mill business. By the partnership agreement, Shepard and Strother furnished the mill at an expenditure of about $3000 and plaintiff became associated with them therein as an equal partner by a contribution of his experience and labor. This partnership was known and is called The Mill Company by way of distinguishing it from O. G. Shepard & Company, a co-partnership, which was then engaged in conducting a general merchandise business at the town of Caruthersville, in the same county. At the time The Mill Company was formed through the association of plaintiff Grier and defendants *Strother and Shepard, defendants Strother and Shepard were engaged in conducting a general store at Caruthersville as a co-partnership under the firm name of C. G. Shepard & Company. Prom the institution of the partnership, known as The Mill Company, the mercantile
The record is voluminous and the testimony as to some of the items in dispute is most obscure. In view of this, we will not attempt to set forth all of the proof as made and the various theories advanced by the parties, but will revieAV only such portions thereof as are material. Several items of the account relied upon may be disposed of in short order, for the evidence touching the matters involved gives rise to no question of doubt. For instance, numerous items with Avhich it is sought to charge defendant Strother as the solvent partner of C. G. Shepard & Company, in view of the bankruptcy of C. G. Shepard, may not be alloAved to plaintiff on any theory for the reason that the obligation of C. G. Shepard & Company, with respect to them accrued after defendant Strother had retired from that partnership and after due notice of that fact had been given to all concerned. It will be remembered that after the retirement of defendant Strother, C. G. Shepard conducted the mercantile business under the firm name as before, but Strother was not responsible for the obligations of Shepard, contracted under that name after notice to plaintiff Grier of the dissolution, which was conceded. On this theory, both the trial court and the referee found plaintiff Avas not entitled to recover against defendant Strother on several items in the bill. Both the court and referee found plaintiff was not entitled to recover on account of a calculated statement in his bill of amounts due plaintiff for one-third interest in certain credits shown by the books Septem
After the partnerships were dissolved, defendant Strother took several yoke of oxen, which were owned by The Mill Company, and used them a few days but returned all but one animal to Shepard, who seemed to be the controlling spirit in the mill partnership. While the cattle were in possession of defendant, one of them suffered a broken leg and died. Plaintiff sues for one-third interest in all, but the evidence is conclusive that Shepard and not this defendant disposed of the cattle some time after the dissolution of the partnerships and, in this view, the referee allowed plaintiff $33.33 only, representing his one-third interest in the ox which died while in defendant’s possession. On reviewing this matter, the trial court allowed plaintiff $16.66 as his interest in the same ox. We believe the judgment of the trial court should be approved as to this, for it appears that such was about one-third the value of the animal for whjch defendant should account to plaintiff.
It appears in the fall, after the dissolution of the partnerships and the work at the mill had been shut down, defendant took several head of old mules, which belonged to The Mill Company, and appropriated them to his own use. Both the court and the referee found such to be the fact and charged him with $183.33 as the amount he should respond to plaintiff for his one-third interest therein. This item should be approved as well, for it is amply supported by the testimony. The same may be said with respect to plaintiff’s claim as
It appears that all of these items, aggregating $456.14 represent property of The Mill Company^ consisting of plaintiff Grier, O. G. Shepard' and defendant Strother, which was appropriated to his own use by defendant Strother. In view of this, of course, the obligation of Strother is to account to his two co-partners in that firm for their two-third interest and Shepard, or rather his trustee, who succeeded to his interest by virtue of his subsequent bankruptcy, should have been a party to the suit to the end of concluding the whole matter by one judgment, for the law is averse to permitting a situation to arise where a subsequent litigation
Next in order, we will consider matters for which defendant should account as a member of the firm of C. G-. Shepard & Company, on the theory of the agéncy of that co-partnership for The Mill Company. Before the firm of C. Q-. Shepard & Company dissolved, that firm
The referee denied plaintiff any interest whatever in respect of money received for the sale of 160 acres of land but the court allowed him $266.66 as one-third interest in $800, which it treated with as representing the value for which defendant should account pro rata. We believe this was error, for on any theory, if plaintiff recovers at all as to this, he is entitled to $200. ' As to this matter, it appears The Mill Company desired to' buy the timber standing on 160 acres of land near the saw mill. Upon making inquiry, they discovered the
Prom what has been said, it is manifest defendant should account for his one-third interest in property of The Mill Company, appropriated to his own use in the total sum of $456.14 and as a member of the firm of C. G. Shepard & Company in the amount of $1005.54; the total amount aggregating $1461.68.
We come now to review certain credits to which it clearly appears defendant is entitled. Plaintiff appropriated to his own use certain lumber which belonged to The Mill Company, valued at $50 and the court allowed defendant a credit of one-third of this amount, that is, $16.66. Ordinarily plaintiff' as a joint obligor within the sense of the statute should respond for two-thirds of the amount of the lumber; for if plaintiff Grier appropriated $50 worth of lumber from The Mill Company, which consisted of three equal partners, then his interest in that lumber is $16.66 1-3 and the interest of his partners, Shepard and Strother is $33.33 2-3. The statute says, in all actions brought against one or more joint obligors or promisors, any debt or demand due from plaintiff to defendant in the action or to all the obligors or promisors in the contract sued upon may be set off against the demand of the plaintiff. [Sec. 1870, R. S. 1909.] Plaintiff Grier owes his two partners jointly $33.33 2-3 for two-thirds interest in the lumber appropriated in which he owned one-third, and under ordinary circumstances, this amount would be available.
In his bill, plaintiff admits an individual indebtedness to the firm of C. G. Shepard & Company before ■and at the time of its dissolution, amounting to $1477.69. It seems this was an account for goods which plaintiff purchased throughout several years at the store of his partners, C. G. Shepard and J. E. Strother. Besides admitting this indebtedness, $1477.69, in his bill, plaintiff testified to the fact of such indebtedness on the witness stand and insisted defendant should be credited to that extent. Notwithstanding this, however, and notwithstanding the fact that the referee allowed defendant the benefit of this credit, the court, on reviewing the exceptions to the referee’s report, allowed one-half of it only, that is to say, the court allowed defendant a credit of $738.85. No one can doubt that plaintiff would be estopped by his pleading alone from disputing the credit which he conceded to be $1477.69. [Harrison v. McReynolds, 183 Mo. 533, 82 S. W. 120; Cousins v. Bowling, 100 Mo. App. 452, 74 S. W. 168.] But having admitted in his testimony that he owed C. G. Shepard & Company the amount mentioned, we are at a loss to ascertain on what theory the court allowed defendant the benefit of only one-half of that amount, for it was certainly all available to him under the pleading alone. Then, too, having sued defendant for an accounting in.
From items heretofore set forth, it appears defendant is to respond on the partnership obligation of C. G. Shepard & Company for the amount of $1005.54 and this being true, an equal amount, that is, $1005.54,- of plaintiff’s individual account with the co-partnership, is available as an offset on the most familiar principles of equi-' ty alone. But the plaintiff’s individual account in amount exceeds that sum by $472.15 and the important question is: What shall.be the disposition of this balance? After plaintiff’s account against C. G. Shepard & Company is offset by an allowance of the same amount to defendant, the balance for which plaintiff seeks a recovery stands as an individual indebtedness to him from. Strother on account of The Mill Company, concerning which Shepard is to be regarded as out of the case. Such individual liability of Strother is ascertained to be $456.14.
By the bankruptcy of Shepard, it is undoubted onelialf of the $472.15 balance due C. G- Shepard & Company passed to his trustee but in equity, no doubt that
But, be all of this as it may, under the pleadings, the plaintiff cannot recover the balance found to be due him for the reason he is estopped thereby. Both in his bill and in his proof, plaintiff insists defendant shall have credit on the account as finally stated for the amount of $1477.69, which he owed C. G. Shepard & Company. A party may waive his rights, if he so desires, to .an amount which may otherwise be found to be due him, or he may donate the entire amount to another. However much a court of equity may be inclined to ascertain and declare a true result in accord with the precepts of good conscience, it may not withstand the force and. effect of such waiver intentionally done nor evade the consequence of an estoppel deliberately made by averment in the bill. Because plaintiff in his bill insists upon crediting defendant Avith the full amount of $1477.69, the court will do likewise.
From an examination of the Avhole matter, we ascertain the fact to be, and state the account, as folloAvs: