67 Mo. App. 308 | Mo. Ct. App. | 1896
The parties to this action, Hanna and Hyatt, were for several years prior to April 27, 1891, engaged in the coal business under the partnership name of St. Joseph'Coal Company. During the co-
While this action was pending, the following written proposition was made and accepted: •
“St. Joseph, Mo., April 27, 1891.
“I will give or take sixty-five hundred dollars for one half interest (being one partner’s full share) of the St. Joseph Coal Company, including all stock, bonds, goods, choses in action, leases, chattels, interests, and moneys, whether in bank or in land, or freights belonging to said St. Joseph Coal Company, to be paid as follows: Three thousand dollars cash in hand, and the balance in two payments as follows: Two thousand dollars on or before July 1, 1891, and fifteen hundred on or before first September, 1891; the last two payments to be secured by promissory notes of the respective amounts of $2,000 and $1,500 at 6 per cent from date, and shall be a lien on the property sold until paid. Said notes may be paid at any time prior to the said first of July and first of September, at the*312 option of the purchaser. The business and property to be turned over to the purchaser untrammeled and unquestioned in all particulars, just as it is, unfinished and unsettled. The purchaser to assume all debts or liabilities, and to collect and appropriate all claims and accounts or notes due said firm.
“E. R. Hanna,
“In accordance with the above proposition, I will sell to E. R. Hanna.
“C. O. Hyatt.”
After this proposition had been made and accepted the defendant Hyatt had nothing further to do with the business of the coal company, but the plaintiff managed and controlled its affairs as sole owner. He prosecuted the suit begun by himself and Hyatt without suggestion or aid from the latter. That suit was tried about two years after the dissolution of the coal company partnership, and the land company not only defeated the action for the recovery back of the cash paid on the lots, but secured a further judgment foreclosing its lien for the balance of the purchase money, the court entering judgment against both Hanna and Hyatt for the balance due on the lots and directing sale thereof. The lots were sold under execution, but the sale failed to realize enough to satisfy the entire judgment by about $1,250, which the plaintiff paid and then brought this suit against defendant for half said amount as well as half of all costs, attorneys’ fees, and taxes paid on account of the property after dissolution of the partnership in April, 1891.
Hyatt defended the action on the ground that, when Hanna bought his interest in the coal company the latter agreed to and took the lots as other assets, together with the suit and claim against the land company, and assumed all liabilities attached thereto.
Plaintiff’s counsel seems now to contend that this is a suit in equity, and that we should treat it as such, though it was tried in the circuit court as an action at law. This, however, is a matter of little consequence, since in our opinion the judgment was for the right party and must be affirmed. The contention that a suit for contribution is necessarily of equitable jurisdiction is erroneous. It is true that the doctrine had its origin in courts of equity, but it has long ago, in this state as well as in the courts generally, been considered an action at law, and to be tried and determined as such. Van Petten v. Richardson, 68 Mo. 379; Wilkerson v. Sampson, 56 Mo. App. 276.
As indicative of the theory upon which the ease was tried and determined, the court of its own motion gave this instruction:
“The court declares the law to be that if the plaintiff and defendant were in partnership, doing business under the firm name of St. Joseph Coal Company, and purchased the lots referred to in evidence as the nail mill lots, and made the partial payment referred to in evidence with moneys belonging to said firm, and intended said lots to belong to said firm and business as partnership property, and afterward brought the suit mentioned in evidence to recover the money paid on said lots and tendered with said suit a deed to said lots, and that before said suit was tried or determined the plaintiff purchased all the interest of the defendant in said partnership, including the interest, rights, and liabilities of the defendant in the suit on the property therein involved, and that thereafter the plaintiff continued to prosecute the said suit on his own behalf, and that upon final hearing of said cause the claim for said*314 part of said purchase money aforesaid was decided against plaintiff, and judgment rendered against plaintiff and defendant for the balance of said purchase money, and the. deed of trust foreclosed and property sold, and that plaintiff afterward paid the balance of said judgment and all. the costs and expenses of said suit, including attorney’s fees, and that this suit is to recover one half of said judgment and expenses, then the plaintiff can not recover.”
This is a correct declaration of the law as applicable to the case. And since there was abundant evidence to sustain the court’s finding, the judgment must be affirmed.