Matney v. Gregg Bros. Grain Co.
| Decision Date | 26 October 1885 |
| Citation | 19 Mo.App. 107 |
| Parties | JAMES B. MATNEY ET AL., Respondents, v. THE GREGG BROTHERS GRAIN COMPANY, Appellant. |
| Court | Missouri Court of Appeals |
APPEAL from Buchanan Circuit Court, HON. JOSEPH P. GRUBB, Judge.
Reversed and remanded.
The facts are sufficiently stated in the opinion of the court.
JAMES W. BOYD, for the appellant.
I. The evidence was not sufficient to authorize the court to submit the case to the jury, and the instruction to that effect ought to have been given. The instructions given on part of plaintiffs were erroneous.
II. The contract sued on did not “stand admitted,” and the jury were authorized by the same instruction (assuming the contract was admitted), to measure the damages by any rule they might see fit to adopt. This was error. The measure or rule by which to measure damages is purely a question of law.
III. As there is no evidence to sustain the verdict, it is but fair to assume that the jury gave undue weight to the statements of plaintiffs' attorney; and the judgment ought to be reversed for that reason.
IV. The motion in arrest of judgment should have been sustained for these reasons: 1. The petition does not state facts sufficient to constitute a cause of action. 2. No one of plaintiffs is administrator of the partnership estate of J. B. Matney and A. E. Matney. 3. The letters of administration granted on estate of deceased partner were irrelevant and incompetent. The court overruled the objections and defendant excepted. The surviving partner must give bond before he is authorized to act as administrator of partnership estate, and the administrator of the individual estate has no right to partnership assets until he enters into proper bonds. Rev. Stat., sects. 60, 62; Orrick v. Vahey, 49 Mo. 428.No brief on file for respondent.
This action was instituted in a justice's court to recover damages for the breach of a contract touching the sale of a certain lot of corn. The plaintiffs were partners, and the defendant is a business corporation. Plaintiffs recovered judgment in the justice's court, from which the defendant duly appealed to the circuit court.
Between the recovery of this judgment and the trial de novo in the circuit court, the partnership of plaintiffs was dissolved by the death of one of the partners, A. E. Matney, leaving James B. Matney the sole surviving partner. In the circuit court the death of said A. E. Matney was suggested, and the suit was revived in the name of said Wm. M. Matney and Thomas Bruce, administrators of the estate of said A. E. Matney, deceased, together with said James B. Matney.
After the trial was begun in the circuit court, the defendant objected to the introduction of any evidence by the plaintiffs, on the ground that the administrators of the individual estate of the deceased partner had no interest in this action, and the plaintiffs could not recover jointly thereon. This objection was overruled, and the plaintiffs recovered judgment, from which thedefendant prosecutes this appeal.
I. There is no question but that on the death of one of the partners, the cause of action survived to the surviving partner. He was the only necessary party to a complete determination of the matters in controversy. The administrators of the estate of the deceased partner could not maintain the action to recover on a contract made with and belonging to the partners. It is only where the surviving partner has failed to give the bond, required by sections 60 and 62, Revised Statutes, and the administrator of the individual estate has further qualified by giving the bond required by said section 62, that the latter may meddle with the partnership assets. Bredow v. The Mutual Savings Inst., 28 Mo. 181; Orrick, Adm'r, v. Vahey, 49 Mo. 428; Easton, Surviving Partner, v. Courtwright et al., 84 Mo. 27.
But the more difficult question is, has the defendant taken the proper step in the trial court to avail itself of this mere irregularity? Had the action been instituted in the circuit court, if the defect was apparent of record, the defendant could only have taken advantage of it by demurrer, and if not so appearing it should have been raised by answer, otherwise the objection would be deemed to have been waived. Gimbel v. Pignero, 62 Mo. 240; Dunn v. Hann. & St. Jo. R. R. Co., 68 Mo. 269; Butler v. Lawson, 72 Mo. 227; Walker v. Deaver, 79 Mo. 672.
But the suit was instituted in a justice's court, where no pleading on the part of the defendant is required. How, then, is a defendant to raise this objection, and at what stage of the proceeding? Can he do it, in the manner attempted in this case, by merely objecting to the introduction of any evidence by the plaintiff? It has been expressly decided by the supreme court of this state that the only question properly raised by this objection at the trial is, that the petition does not state facts sufficient to constitute a cause of action, or, as held in New York, that the court has not jurisdiction of the subject matter, and that the petition does not state facts sufficient to constitute a cause of action. Butler v. Lawson, 72 Mo. 247. The petition at bar does state a good cause of action, and the justice of the peace did have jurisdiction of the subject matter.
In Lass v. Eisleben (50 Mo. 122), the attention of the court was directed to this question. That was an action of unlawful detainer, in which the administrator was held to be the only necessary party plaintiff. The case was taken by certiorari to the circuit court. Complaint was made by the defendant that the heirs of the intestate were joined as parties plaintiffs with the administrator. The court observed:
I can perceive no valid reason why the same rule should not apply to a case situated as this is. The defendant should have simply moved the court to strike out the names of the administrators as unnecessary parties. Nor can we perceive that, after verdict, the defendant...
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