10 Mo. 640 | Mo. | 1847
delivered the opinion of the Court.
Cabell brought ail aotion of assumpsit against Springer, the declaration containing one general count for work and labor, money lent, &c. The general issue was pleaded. The cause was submitted to the Circuit Court. The plaintiff, read in evidence a letter from Springer, dated ' St. Louis, Dec. 10, 1844, in which he told plaintiff, that if he continued his suit against him, he would' never pay him one cent, but if he would withdraw it, he would get him a tract of land worth government price. Charles Cabell, a witness for the plaintiff, testified, that he was present at a conversation between plaintiff and defendant, from which he learned, that they had entered into an agreement to be partners for the term of five years, in the buying and selling of lands; that they were to be equally interested in-the profits and losses attending said business; that
This was all the evidence offered, and upon this state of facts, the defendant called upon the court to decide that the plaintiff could not recover. But the court found a verdict for the plaintiff for $148, and gave judgment for the same.
It was determined by this Court, in the ease of Stotherts vs. Knox, (5 Mo. R., 112,) that one partner cannot maintain assumpsit against another, whilst the partnership concerns remain unadjusted. The case of Byrd vs. Fox, (8 Mo. R., 574,) is only an exception to this general principle, in which the reason whereon the rule was founded, could have no operation. In the present case, all the transactions between the parties upon which this suit is sought to be maintained, grew out of the partnership for five years, in which both plaintiff and defendant were to share equally the profits and losses. It does not appear whether the speculations were profitable or worthless, and the verdict of the Circuit Court appears to be simply for the return of the money supposed to have been
Judgment reversed.