30 Mo.App. 107 (Mo.App. 1888), McLean v. McAllister

Citation:30 Mo.App. 107
Opinion Judge:ROMBAUER, P. J.
Party Name:W. D. MCLEAN, Plaintiff in Error, v. W. B. MCALLISTER, Defendant in Error.
Attorney:SMITH & HOSTETTER, for the plaintiff in error: CHAMP. CLARK, for the defendant in error:
Case Date:March 27, 1888
Court:Court of Appeals of Missouri

Page 107

30 Mo.App. 107 (Mo.App. 1888)

W. D. MCLEAN, Plaintiff in Error,

v.

W. B. MCALLISTER, Defendant in Error.

Court of Appeals of Missouri, St. Louis.

March 27, 1888

ERROR to the Pike Circuit Court, HON. E. M. HUGHES, Judge.

Reversed and remanded.

SMITH & HOSTETTER, for the plaintiff in error: All contracts which by common law are joint only shall be construed to be joint and several. Rev. Stat., secs. 658, 659-61. Plaintiff has the right to sue W. B. McAllister either individually or as administrator of the partnership estate. Bank v. Cottey, 70 Mo. 150, and cases cited.

CHAMP. CLARK, for the defendant in error: This being an action involving a dead man's estate--upon which said estate administration is now being had in the probate court--it cannot be maintained for the reason that the probate court has entire and exclusive jurisdiction of all such estates. The proper remedy of plaintiff is to apply to the probate court for the allowance of his claim. Const of Mo., sec. 34, art. 6; Rev. Stat., secs. 65, 1176; French v. Stratton, 79 Mo. 560; Davis v. Smith, 75 Mo. 219; Hellman v. Wellenkamp, 71 Mo. 407-9; Ensworth v. Curd, 68 Mo. 282; Titterington v. Hooker, 58 Mo. 593; Pearce v. Calhoun, 59 Mo. 271; Wernecke v. Kenyon's Adm'r, 66 Mo. 284; Dodson v. Scruggs, 47 Mo. 285; Cones v. Ward, 47 Mo. 289; Bauer v. Gray, 18 Mo.App. 173. The authorities cited by plaintiff in error do not apply in this case.

OPINION

ROMBAUER, P. J.

The pleadings and evidence tended to show the following facts: The defendant and A. R. McAllister were, in the year 1872, copartners as W. B. & A. R. McAllister, and as such the assignees of a claim held formerly by Anderson and Patterson against the Missouri & Iowa Construction Company. Anderson and Patterson had, prior to the assignment, given an order to plaintiff upon the company for the sum of $311.72, which order the company had accepted. When the company was sued by W. B. & A. R. McAllister as assignees, it set up the acceptance of this order in part defence to their recovery. It was thereupon agreed between the plaintiff, the two McAllisters, and the company, that if the company would allow judgment for twelve hundred and twenty-five dollars to go in favor of the two McAllisters, they would pay from the proceeds of the judgment when collected the sum of $311.72 and interest to plaintiff. The company thereupon withdrew...

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