67 Mo. 667 | Mo. | 1878
— This was a suit on a promissory note for $400, dated November 20th, 1874, due one day after date. Defendants averred in their answer that plaintiff and the defendant Shaw entered into copartnership about the 20th day of October, 1874, for the purpose of buying and selling hogs during the packing season of 1874; that about said 20th day of October the plaintiff, for the purpose of starting said business, advanced to the defendant Shaw the sunn of $400, which said defendant paid out, together with large sums of his own, in the purchase of hogs, which were shipped to and sold by the plaintiff; that it was agreed and understood between defendant Shaw and the plaintiff that said sum of $400 should be left with the defendant as a permanent fund for said partnership until said partnership business was settled. The answer further ‘averred that on or about the 20th day of November, 1874, and after a shipment of hogs had been made by defendant Shaw to St. Joseph, Missouri, in behalf of plaintiff and defendant, and on which there had been a loss of about $200, the plaintiff went up to Craig, Missouri, where the defendant Shaw was living, and requested defend ant Shaw
We perceive no error in the action of the circuit court. The note sued on was an absolute and unconditional promise to pay the sum of money therein specified, and the defendants could not be heard to allege that, by a
Nor can the note in suit be treated as an escrow. In order to give it such effect, delivery must be made to a third person, and not to the payee. Massmann v. Holscher et al., 49 Mo. 87; Henshaw v. Dutton, 59 Mo. 139.
An alleged indebtedness of a partner to his copartner, upon a settlement of the copartnership affairs, cannot be pleaded-as a set-off or counter-claim. This was expressly ■decided in Leabo v. Renshaw, 61 Mo. 292. One partner cannot be said to be indebted to his copartner on partnership account until there has been a settlement of the co-partnership affairs. Finney v. Turner, 10 Mo. 207. If, on account of the insolvency of the plaintiff, or other cause, the court would have been warranted in depriving the plaintiff of his right toa judgment on the note in suit until the copartnership affairs of 'the plaintiff’and the defendant Shaw were settled and determined, or if the right of the defendant Shaw to maintain a suit for the settlement of the copartnership could be deemed to be within the definition of a counter-claim, still the defendants cannot complain of the action of the court below. Neither the insolvency of plaintiff, nor other ground for equitable relief,
the judgment will be affirmed.
Affirmed.