15 S.W. 312 (Mo. 1891), Hundley v. Farris

Citation:15 S.W. 312, 103 Mo. 78
Opinion Judge:Sherwood, P. J.
Party Name:Hundley, Appellant, v. Farris, Administrator
Attorney:James W. Boyd and A. D. Kirk for appellant. B. R. Vineyard for respondent.
Judge Panel:Sherwood, P. J. Barclay, J., dissents.
Case Date:February 02, 1891
Court:Supreme Court of Missouri
 
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Page 312

15 S.W. 312 (Mo. 1891)

103 Mo. 78

Hundley, Appellant,

v.

Farris, Administrator

Supreme Court of Missouri, First Division

February 2, 1891

Appeal from Buchanan Circuit Court. -- Hon. J. P. Grubb, Judge.

Affirmed.

James W. Boyd and A. D. Kirk for appellant.

(1) The appellant is entitled to an unconditional judgment against the estate of Madison S. Farris. R. S. 1879, secs. 184, 185 and 212; McLean v. McAllister, 30 Mo.App. 107. (2) Because appellant is not only a partnership creditor of the firm of M. S. Farris & Co. but is also an individual and separate creditor of Madison S. Farris, and is entitled to share pari passu with the other individual creditors of the estate. R. S. 1879, secs. 658, 3467; McLean v. McAllister, 30 Mo.App. 107; Shackelford's Adm'r v. Clark, 78 Mo. 491. (3) Under the statutes of this state (secs. 658, 3467) each member of a firm is liable individually and separately to a creditor of the firm. Therefore, every creditor of a firm is an individual and separate creditor of each member of the firm. 30 Mo.App. 107; Gates v. Watson, 54 Mo. 585; Bank v. Cottey, 70 Mo. 150; Bryant v. Hawkins, 47 Mo. 410; R. S., secs. 658-9. And if he is an individual creditor of the estate he is entitled, even at common law, to come in equally with the other individual creditors, although he may also be a firm creditor.

B. R. Vineyard for respondent.

The estate of a partnership must be settled, in case of dissolution by death, entirely on equitable principles, and they would require that the claims of the several creditors and those of the joint creditors should be kept entirely distinct, each having its separate fund, and passing over to the other only in case of a surplus. Upon such dissolution, the assets are placed in the custody of the law for distribution. Parsons on Partnership [2 Ed.] side p. 447-8; 2 Bates on Partnership [Ed. 1888] secs. 825, 828; 2 Lindley on Partnership [Ewell's Ed.] pp. 1054-5; Story on Partnership [4 Ed.] sec. 363; Collyer on Partnership [Perkins' Ed.] sec. 920; 3 Kent's Commentaries [12 Ed.] side p. 65; Level v. Farris, 24 Mo.App. 445; Bank v. Bank, 94 Ill. 278; Rainey v. Nance, 54 Ill. 35; Black's Appeal, 44 Pa. St. (8 Wright) 503; Wilder v. Keeler, 3 Paige Ch. 171-4; Murrill v. Neill, 8 How. 426; Bond v. Nave, 62 Ind. 505; Weyer v. Thornburgh, 15 Ind. 124; Gray v. Chiswell, 9 Vesey, 118; Jarvis v. Brooks, 23 N.H. 136; Crockett v. Crain, 33 N.H. 542; Holton v. Holton, 40 N.H. 77; Moody v. Downs, 63 N.H. 50; Bagwell v. Bagwell, 72 Ga. 92; Irby v. Graham, 46 Miss. 425; McCulloh v. Dashiell, 1 Harr. and Gill (Md.) 96; 3 Redfield on Wills [2 Ed.] p. 257, sec. 9; Phelps v. McNeeley, 66 Mo. 558; Cowan v. Gill, 11 Lea (Tenn.) 674; Davis v. Howell, 33 N.J.Eq. 72; Toombs v. Hill, 28 Ga. 371; Smith v. Mallory, 24 Ala. 628; Rogers v. Meranda, 7 Ohio St. 179. (2) Independent of statute, equity has always construed all partnership contracts to be joint and several. 3 Kent's Commentaries [12 Ed.] side p. 64; Wilder v. Keeler, 3 Paige, 167; Irby v. Graham, 46 Miss. 428; McCulloh v. Dashiell, 1 H. & G. (Md.) 96; Story on Partnership, sec. 362; Level v. Farris, 24 Mo.App. 459-60-1. Yet in the distribution of the estate of a deceased partner equity has always held that the individual creditors of that estate had a prior claim upon its assets, and must be paid in full before the partnership creditors could share therein. See authorities cited in division 1 of this brief. (3) The statute of this state (sec. 658) requiring all joint contracts to be construed as joint and several, and making provision (sec. 3467) for a suit against anyone liable, or his administrator, without the necessity of uniting with him as defendants the other joint contractors, was intended only to affect the mode of procedure, "and does not affect the law of...

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