Weise v. Moore
| Decision Date | 14 June 1886 |
| Citation | 22 Mo.App. 530 |
| Parties | JOHANNA WEISE, Respondent, v. JOHN W. MOORE, Appellant. |
| Court | Kansas Court of Appeals |
APPEAL from Moniteau Circuit Court, HON. E. L. EDWARDS, Judge.
Affirmed.
Statement of case by the court.
This is an action for wrongfully taking and converting personal property, consisting of wheat and corn. The material facts are, that one Hanawalt and Weise were partners in the milling business at Tipton, Missouri. Weise died in 1883. Hanawalt seems to have continued thereafter to run the mill, under the firm name of Hanawalt & Co.
In the spring of 1884 he applied to plaintiff, who is the widow of the deceased partner, for some money, which came to her as the proceeds of a life policy on her husband. He represented to her that he needed it to run the mill. Her testimony tended to show that she would not loan this money to Hanawalt, but that she let him have it to buy wheat for her and after it should be ground into flour she would divide the profits with him. She did furnish him money, from time to time, amounting in the aggregate to over seven hundred dollars; and at different times drew out of the business some money. With the money so received Hanawalt bought wheat and corn, which was ground at the mill, and sold. With the money so advanced by plaintiff, and the proceeds of other sales of flour, the product of purchases made with her money, the wheat and corn in controversy were bought, and were in the mill on the fifth day of July, 1884.
On the third day of July, 1884, the probate court of Moniteau county granted to the defendant letters of administration on the partnership estate of Hanawalt & Weise. On the fifth day of said month the defendant proceeded, as he claims, by virtue of his office as such administrator, to take possession of said wheat and corn; and, after having the same appraised, under an order of the probate court, he sold the same to plaintiff and Hanawalt, at the appraised value. There are other facts in the bill of exceptions, but as they do not affect the result they are not here enumerated.
The cause was tried before the court sitting as a jury. The plaintiff asked no declarations of law. The defendant made many requests for declarations of law, which the court refused. Most of them were based on the assumption that the defendant was the administrator of the partnership estate of Hanawalt & Weise; and others were predicated of the estoppel, sufficiently noticed in the opinion of the court.
The court found the issues for the plaintiff. From its judgment defendant prosecutes this appeal.
JOHN M WILLIAMS and L. F. WOOD, for the appellant.
I. The evidence sustains the allegations of the answer, and constitutes a complete defence to plaintiff's action of trover, and the court erred in refusing defendant's instructions, and in rendering judgment for plaintiff. Conversion implies a tortious act. 1 Chitty's Plead. (13 Am. Ed.) Title Trover, 145; 9 Bacon's Abridgement, Title Trover; 2 Greenleaf's Evidence--Trover; 2 Hilliard Torts ch. 25, p. 100 (2 Ed.); Ireland v. Horseman, 65 Mo. 511.
II. The act of conversion implies the disposal of the property without the consent of the owner. Gibbs v. Chase, 10 Mass. 128; 2 Greenl. Evid., sect. 642; Seifert v. Withington, 63 Mo. 577.
III. Plaintiff is clearly estopped from bringing this suit against defendant individually, when the act complained of was done by him in his representative capacity, as administrator, with her consent and approval. Harrison v. Rincoe, 15 M. & W.; 1 Hill. Torts, 185; Broome's Leg. Max. (6 Am. Ed.) 212; Bigelow Est. 438, 480, 496; Taylor v. Zeph, 14 Mo. 482; Spurlock v. Sproule, 72 Mo. 503; Acton v. Dooley, 74 Mo. 53; Hart v. Giles, 67 Mo. 175.
IV. Plaintiff having permitted the surviving partner to use her money in the business of the concern, she has no remedy against the administrator. Bredow v. Sav. Inst., 28 Mo. 181; Burrell v. Cawood, 2 How. (U. S.) 560. Under the statute the surviving partner has no control over the partnership effects before giving bond. Rev. Stat. 10.
V. Plaintiff received part of the partnership assets after her husband's death. Her claim for the entire amount put in the concern, to the exclusion of creditors, is not of an unquestionably equitable character.
W. P. JOHNSON & SON, and DRAFFEN & WILLIAMS, for the respondent.
I. Defendant ought not to be entitled to hold for the partnership creditors the wheat and corn that was purchased after the death of Weise with plaintiff's money. It would be unjust to allow the administrator of the partnership to take the property purchased with plaintiff's money, and exonerate the estate from liability for the money. Exchange Bk. v. Percy, 77 Mo. 595; Richardson v. Moies, 36 Mo. 439.
II. Defendant cannot claim any exemption from liability on the ground that he took the goods as administrator. He was bound to decide, at his peril, whether the property belonged to the partnership estate or not. Pattison v. Coons, 56 Mo. 169.
III. It was not necessary for plaintiff to show that her identical money purchased the wheat and corn. It was sufficient that it was bought with the money she furnished, or with the proceeds of other wheat bought with her money.
IV. Plaintiff is not estopped to set up her claim if her consent was induced by defendant's advice to present her claim to the probate court. Besides, defendant could lose nothing. If the property did not belong to the estate, he cannot be charged with it as administrator.
V. The fact that the surviving partner was to have one-half of the profits realized from grinding the grain into flour and meal does not make him a partner in the grain. Campbell v. Dent, 54 Mo. 325.
VI. The property does not belong to defendant as administrator of the partnership estate; and plaintiff ought to have her money returned to her.
I. The first fact apparent from this record is that the property in question never belonged to the partnership estate of Hanawalt & Weise. It was not in existence at the time of the death of Weise; nor was it the product of any asset or money of the estate. By the death of Weise the co-partnership was effectually dissolved, and at an end. After that, Hanawalt, the surviving partner, had no power to create any new debts or obligations of the concern. The Exchange Bank v. Tracy, 77 Mo. 599.
As such surviving partner Hanawalt was entitled to the possession and control of the partnership assets for the purpose of winding up its affairs and discharging its debts and obligations. This right he could exercise with or without giving the statutory bond. The only effect of his failure to give such bond was, after the lapse of the prescribed time, to invite the administrator of the individual estate of the deceased partner to execute the additional bond, and take charge of the partnership assets. Easton v. Courtwright, 84 Mo. 27; Bredow v. The Mut. Sav. Inst., 28 Mo. 181; Matney v. Gregg Bros. Grain Co., 19 Mo.App. 107.
Defendant's answer avers that, " no letters of administration having been granted on the estate of said Henry G. Weise, the probate court of Moniteau county, on July 3, 1884, appointed defendant administrator of the said partnership estate."
Where did the probate court of Moniteau county acquire the authority to appoint the defendant administrator of the partnership estate in question? At common law the surviving partner alone had the right to take and administer the partnership property. This right exists to-day, except in so far as it has been modified or subjected to new conditions and incidents by the statute. Easton v. Courtwright, supra. The only changes, at the time of these occurrences, made in this respect by the legislature, are to be found in article three, chapter one, Revised Statutes. Section sixty-two provides that: " In case the surviving partner or partners shall neglect or refuse to give the bond required by this article, within thirty days after the grant of letters-testamentary, or of administration, on the estate of the deceased partner, the executor, or administrator, of the deceased partner shall give bond, in addition to the bond given by him as executor, or administrator," etc.
The administrator, or executor, of the estate of the deceased partner, and no one else, is authorized to interfere with the custody and right of administration of the surviving partner on his failure to give bond. The probate court of Moniteau county had no power to appoint the defendant, or to authorize him to interfere in the matter.
While the defendant cannot, in strictness of term, be denominated an intruder, as there is no such place as that assigned him by the order of the probate court, known to the law, unless he be surviving partner, or administrator of the deceased partner, he can be regarded in no other...
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