| Mo. Ct. App. | Feb 26, 1895
—Plaintiffs, Wright and Dalton, state in their petition that on the eighteenth day of January, 1891, they bought the interest of one Warne in a partnership, of which he was a member, carried on under the style of “Radcliffe & Warne,”'and on the same day formed an agreement of copartnership with said Radcliffe, whereby the business should be conducted under the firm name of “Wright & Dalton Machine Company;” and that this firm continued until the twenty-eighth day of January, 1891, when Radcliffe sold out to the plaintiffs. The petition then alleges that plaintiffs were induced to purchase their interest in the partnership of Radcliffe & Warne by the misrepresentation of Radcliffe as to the amount of partnership indebtedness of said firm. The petition further states, to wit: “Complainants further allege and show that the indebtedness of the said copartnership of Radcliffe & Warne far exceeded the sum of $600 or $700, as was represented by the said Radcliffe, but in truth and in fact amounted to $1,637; that the
“Complainants further represent and show that, prior to the entering into the said copartnership arrangement, the said Radcliffe had executed to one G-eorge Kolb a mortgage for the sum of $155 on a part of the partnership property belonging to the said Radcliffe & Warne, of which these complainants knew nothing at the time, but that these complainants have been compelled to take and satisfy said mortgage, but that, in taking up the same, took an assignment of the same to these complainants; and they now hold the same as a charge on any interest which the said. Radcliffe may have in and to any of said copartnership, property.
“These complainants further represent and show that the entire partnership property of the Wright & Dalton Machine Company will not amount to as much as the complainants have been compelled to pay on account of the said Radcliffe & Warne, as aforesaid, together with the said $600 which these complainants by their said copartnership agreement agreed to, and did, put into the said copartnership of the Wright & Dalton Machine Company.
“These complainants further represent and show that shortly, before the execution of the said bill of sale from the said Radcliffe to these complainants, the defendants, James R. Hogg and Thomas M. Johnson and the firm of Babcock & Tetwiler, all of whom are made defendants herein, severally sued out attachments before J. R. Crum, justice of the peace in and for the county of Butler, against the said James A. Radcliffe, and caused the same to be levied on the said copartnership property of the said copartnership of the said Wright & Dalton Machine Company and have caused such action to be taken as that judgment has been rendered in said cause against the said James A. Radcliffe and in favor of the several plaintiffs therein, all of whom are made parties defendant herein, and have caused Execution to be issued thereon and placed in the hands of defendant Benjamin C. Jonas, who is the constable
The.petition prays • an accounting between plaintiffs and said Radcliffe, a settlement of the copartnership, and an injunction restraining the enforcement of the execution of his private creditors in the firm assets until the affairs of the copartnership shall have been settled and all the equities of the parties adjusted by decree.
The execution creditors, who were made defendants to the foregoing petition, answered, neither admitting nor denying the statements of the petition, except as to the obtention of their judgments, and calling for proof of all other allegations, and averring that plaintiffs’ remedy, if they had any, -was at law. Defendant Radcliffe made default. The court found that defendant Radcliffe had no interest in the partnership assets when the same was levied upon by his private creditors, and perpetually enjoined ,:aid creditors from the enforcement of their judgments out of the partnership assets. The case comes here by writ of error.
The evidence is not preserved in a bill of exceptions ; hence, the only question before us is the sufficiency of the petition to sustain the judgment upon the assumption that the findings therein made were established by the evidence adduced on the trial. That the petition states a cause of action for equitable relief can not be questioned, for it is the peculiar province of ’ courts of chancery to determine the interests, inter sese, of copartners, and, at their instance to see that the assets of the firm are applied to the satisfaction of the
There is no merit in the contention that the petition in this case is fatally defective in its statement of a cause of action for the ascertainment of the interest of the defendant Radcliffe, and a limitation of the right of his private creditors to the interest remaining in him after the settlement of the partnership indebtedness which existed at the time of the levy of the process. This residue was all the private creditors could convey, even by a seizure of the assets of the partnership in specie and a sale thereof under execution. Shackleford v. Clark, supra; Wiles v. Maddox, 26 Mo. 77" court="Mo." date_filed="1857-10-05" href="https://app.midpage.ai/document/wiles-v-maddox-3527118?utm_source=webapp" opinion_id="3527118">26 Mo. 77. Nor is there any force in the suggestion of the learned counsel for plaintiffs in error, that the bill of sale from Radcliffe was made to his copartners after the attachment of his interest by his individual creditors. The equities of his copartners do not depend upon the bill of sale, but grow out of the payment by them of partnership indebtedness which existed at the time of said levy. To satisfy such existing firm indebtedness, they had an equitable lien upon the firm assets which was.not displaced by a levy of attachments by the separaté creditors. The counsel for plaintiffs in error urges that the petition states only by intendment the payment by defendants in error of the partnership indebtedness, existing when the attachments against Radcliffe were levied upon the firm assets. If this be conceded for argument, still it is an objection which can not be considered after judgment; nor could it be raised before judgment by motion to exclude testimony, as was attempted in this case. Lynch v. Railroad, 111 Mo. loc. cit. 604.
The petition in this ease fully warrants the decree