23 Mo. App. 631 | Mo. Ct. App. | 1886
Lead Opinion
delivered the opinion of the court.
This action was brought before a justice of the peace to recover a balance alleged to be due upon an open account. On appeal to the circuit court there was a trial de nono by the court, a jury having been waived, and a judgment in favor of the plaintiff from which the ■defendant has appealed.
Objection was made before the justice and in the ■circuit court to the jurisdiction of the justice, on the ground that the plaintiff and defendant were, in respect ■of the transaction out of which the .account grew, partners, and that a justice of the peace has no jurisdiction of a suit to settle the accounts of a partnership, the same bung a suit .n e i lity.
The plaintiff in nis testimony stated the arrangement which existed between him and the defendant, out ■of which the matters of account grew, in the following language: “The conditions on which the defendant worked for me are these : I furnished the cigars and tobacco for the defendant to sell, and I was to bear half the expenses of selling the cigars and tobacco, and the defendant was to sell the cigars and tobacco, and to bear half the expenses in doing so, and each was to bear half the losses on the sale of the cigars and tobacco sold by the defendant, and each was to get half of the profits from the sale.” The defendant’s version of the arrangement was substantially the same as that of the plaintiff. In addition to this, it appeared that the plaintiff furnished the horse and wagon which the defendant used in peddling the cigars and tobacco.
On the trial the plaintiff gave evidence tending to show that he and the defendant had accounted together, and that the defendant had admitted that there was due the plaintiff a balance in excess of the amount sued for. There was this infirmity, however, in this part of the plaintiff’s testimony, that this alleged admission was
The court, at the request of the defendant, gave the following declaration of law :
“If the court believes from the evidence that*635 the plaintiff and the defendant, at or before the time of the commencement of the account sued on, entered into a contract by which the plaintiff was to furnish the cigars and tobacco to be sold and to bear half of the expenses incurred in selling said cigars and tobacco, and the defendant was to sell said cigars and tobacco, and to bear half the expenses incurred in selling said cigars and tobacco, and each was to bear half the losses incurred on the sales of said cigars and tobacco, and each was to get half the net profits realized from the sale of said cigars and tobacco ; that the account sued on is based on the sale of said cigars and tobacco under said contract ,j and that there has never been any settlement of the account growing out of the sale of said cigars and tobacco, then the j ustice of the peace before whom this suit was brought had no jurisdiction thereof, and the court will find for the defendant.” :
If we are right in the conclusion that there was no substantial evidence tending to show a settlement of the account between the parties, this instruction is drawn in strict conformity with the undisputed evidence disclosed by the record. There is no substantial evidence in the record which contradicts any hypothesis therein. We can not understand how the court could have given it and afterwards returned a verdict for the plaintiff. If this instruction is the law of the case, the verdict and judgment were' against the law, for this instruction states the undoubted facts of the case. But we are of opinion, for reasons' hereafter stated, that this instruction is not the law of the case, and, therefore, that the contrary finding of the court upon the facts is not necessarily a ground for reversing the judgment. The finding of the court was evidently based upon the theory that there had been an account stated; but this theory, though erroneous, as
The defendant also requested the court to give the following declaration of law, which the court refused :
“A justice of the peace has no jurisdiction over a suit in regard to unsettled partnership accounts, and the circuit court can not acquire any jurisdiction of such suit by appeal.”
This instruction states the undoubted law. But it does not follow that it was applicable to the facts of this case, and it was probably refused for that reason. A suit for the settlement of a partnership account is strictly an equitable proceeding, and the statute provides : “No justice of the peace shall have jurisdiction to hear or try * * * any strictly equitable proceeding.” Rev. Stat., sect. 2337. That the remedy of one partner against the other in such a case is a remedy strictly in equity, is a necessary conclusion from the rule which has always obtained in this state, that one partner can not maintain an action at law against another partner in respect of partnership matters, until after a settlement between them of the partnership accounts and the striking of a balance. Stothert v. Knox, 5 Mo. 112; Springer v. Cabell, 10 Mo. 640 ; Smith v. Smith, 33 Mo. 557; Bond v. Bemis, 55 Mo. 524. The right to relief-in equity in such cases, is grounded on the inadequacy of the remedy at law. 1 Story Eq. Jar. sect. 663. The old common law action of account render, which was resorted to by one partner against another in order to compel a settlement and liquidation of the partnership transactions (Co. Litt. 172 a; Fitzherbert Nat. Brev. 117 d), has never had any place in our remedial system ; and, therefore, the legislature in using the words, “any strictly equitable proceeding,” in the section above quoted, must have intended to exclude the jurisdiction of justices of the peace in actions involving the settlement of partnership transactions.
■ After the evidence was all in the court, against the objection of the defendant, allowed the plaintiff to amend the account sued on so as to change the account from an action upon an open account to an action for a balance due-npon a stated account. This was done by adopting the items of the account originally sued on down to the date of the alleged settlement on January
“1883.
“ Jan. 3. To amount found and agreed to be due to I. Newberger from S. M. Friede, on accounting and settlement together........... $247 81
“1883.
“Cr.
“Mar. 24. By cash......................$ 50 00
'“July 13. “ “ ...................... 130 00 180 00
Balance due................... $67 81”
This ruling was objected to on the ground that it had the effect of changing the cause of action. The Statute provides: “The same cause of action, and no other, that was brought before the justice, shall be brought before the appellate court upon appeal.” . Bev. Stat., sect. 3058. Another section provides: “ In all cases of appeal., the bill of items of the account sued on, or filed as a counter claim or set off; or the .statement of the plaintiff’s cause of action, or of the defendant’s counter claim or set off, or other ground of defence filed before thev justice, may be amended upon appeal in the appellate court, to supply any deficiency or omission therein, when by such amendment substantial justice will be promoted; but no new item, or cause of action, not embraced or intended to be included in the original account or statement, shall be added by such amendment. * * *” Rev. Stat., sect. 3060. We hold, in conformity with our ruling in Hanson v. Jones (supra), that this statement did not state a new cause of action within the meaning of the statute..
It does not follow from the foregoing that the judg
The judgment is accordingly affirmed.
Rehearing
delivered the opinion of the court on re-hearing.
We have granted a re-hearing in this cause, and have heard the parties at the bar and by brief, on the question whether the agreement shown by the undisputed facts of this case constitutes a partnership between the plaintiff and the defendant. The further light which the counsel were able to throw' upon the question, and the careful consideration which we have. «ince given to it, only serve to convince us that while the question, if we could regard it as a new question, would be one of difficulty, we must, in conformity with the latest controlling decisions of oar supreme court upon it, adhere to our former opinion. The question is governed, and our judgment upon it concluded, by the •decision of the supreme court in Donnell v. Harshe (67 Mo. 170), re-affirmed and applied in Musser v. Brink (68 Mo. 242). In Donnell v. liar she the manner in which the question arose is not essentially different from the manner in which it arises in this case. . In an
It follows that we must adhere to our former opiniom and affirm the judgment; It is so ordered.