Ross v. Carson

32 Mo. App. 148 | Mo. Ct. App. | 1888

Ellison, P. J.

— This action is a bill in equity whereby the administrator of the estate of John Carson sues defendant, the surviving partner of the deceased, claiming that the deceased had furnished all the capital in the hardware and milling business, except such as was paid out of partnership earnings, etc. The bill alleged an indebtedness of defendant, due plaintiff, in the sum of six thousand dollars, and contains a prayer for an accounting, and that he have judgment, and be declared to have a lien on the partnership property for whatever might be found by the court as due him, and for other relief.

The answer was a denial of the material portions of the bill, and set up, in addition, that defendant was surviving partner of John Carson, and, as such, was then administering the partnership effects in the probate court of Polk county. The cause was referred to a referee, who afterwards made a finding in favor of plaintiff in the sum of twelve hundred dollars, and filed his report accordingly. Defendant filed exceptions to the report; among the exceptions was this: “Because neither the referee nor this court had or have jurisdiction in this case.” This exception was sustained, and the court dismissed the bill, and plaintiff appeals.

I think the circuit court determined the case properly, One partner cannot owe his co-partner in matters of partnership during the pendency of the partnership. The debtor and creditor relation exists with the firm, and not with the individuals. The firm owes the partner who may have advanced more than his proportion according to the partnership agreement. And so when the partnership is at an end, as by death of one of the partners, there is yet no debt due to either from the other until there has been a settlement. Story on Part., sec. 348a, and note ; Leabo v. Renshaw, 61 Mo. 292. It is warrantable to say that nothing can be due either partner from the partnership effects, no matter how unequally either may have contributed to the partnership fund, until the partnership debts have been discharged. These cannot be legally ascertained — certainly they cannot be legally discharged — except through the probate court. If they can, we must hold that the circuit court has concurrent jurisdiction with the probate court in the administration of estates, a proposition that will doubtless not be contended for.

The judgment is affirmed.

All concur.