32 S.W. 67 (Mo. 1895), Redenbaugh v. Kelton

Citation:32 S.W. 67, 130 Mo. 558
Opinion Judge:Gantt, P. J.
Party Name:Redenbaugh et al., Appellants, v. Kelton et al
Attorney:Numa F. Heitman and George Hubbert for appellants. Cloud & Davies for respondents.
Judge Panel:Gantt, P. J. Burgess, J., concurs; Sherwood, J., not sitting.
Case Date:November 19, 1895
Court:Supreme Court of Missouri
 
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Page 67

32 S.W. 67 (Mo. 1895)

130 Mo. 558

Redenbaugh et al., Appellants,

v.

Kelton et al

Supreme Court of Missouri, Second Division

November 19, 1895

Appeal from Newton Circuit Court. -- Hon. J. C. Lamson, Judge.

Affirmed.

Numa F. Heitman and George Hubbert for appellants.

(1) The pretended sale was made by Collings without any authority, express or implied, from Redenbaugh, his partner, and said want of authority was known to the purchasers, Kelton and son. Said sale was made by Collings to defraud Redenbaugh of Redenbaugh's lien as partner, on the stock of goods, and Kelton and son had knowledge of Redenbaugh's lien as partner on the goods, and bought the same at a grossly inadequate consideration to aid Collings to defraud Redenbaugh of Redenbaugh's rights in and to the stock of goods. Cayton v. Hardy, 27 Mo. 536; Croughton v. Forrest, 17 Mo. 131; Priest v. Choteau, 85 Mo. 398; Hager v. Graves, 25 Mo.App. 165; Ackley v. Staehlin, 56 Mo. 558; Phelps v. McNeely, 66 Mo. 554; Shackelford v. Clark, 78 Mo. 491; Hilliker v. Francisco, 65 Mo. 598; Sexton v. Anderson, 95 Mo. 373; Noble v. Metcalf, 20 Mo.App. 360; Level v. Farris, 24 Mo.App. 445; Kingsland v. Drumm, 80 Mo. 646; Coover v. Johnson, 86 Mo. 533; Lee v. Bowman, 55 Mo. 400; Peet v. Spencer, 90 Mo. 384; Bender v. Merkle, 37 Mo.App. 234; Tufts v. Thompson, 22 Mo.App. 564; Reyburn v. Mitchell, 106 Mo. 365. (2) A condition in a contract of sale of personal property that the title shall remain in the vendor until the purchase money is paid, is valid, and will be enforced even against a bona fide purchaser. Wangler v. Franklin, 70 Mo. 659; Parmlee v. Catherwood, 36 Mo. 480; Sumner v. Cotty, 71 Mo. 121; Little v. Page, 44 Mo. 412; Matthews v. McElroy, 79 Mo. 202; Ridgeway v. Kennedy, 52 Mo. 24; Griffin v. Pugh, 44 Mo. 326. (3) Collings had no authority to make sale of the entire stock in bulk at less than wholesale price and to give away the $ 1,000 worth of clothing upstairs, and the Keltons knew it. Ins. Co. v. Bennett, 5 Conn. 597; Chapman v. Deverough, 32 Vt. 616; Williams v. Bennett, 10 Kan. 455; Yale v. Yale, 13 Conn. 185; Rogers v. Batchelor, 12 Pet. 221; Pollock v. Williams, 42 Miss. 88. (4) One of a firm of retail merchants has no power to make a fraudulent sale of all the retail stock in bulk at a grossly inadequate consideration for the purpose of defrauding his copartner, as was the case here, to persons who had knowledge of the existence of the partnership and the nature of it. Loeb v. Pierpont, 58 Iowa 469; Matter of Daniels, 14 R. I. 500; Wells v. March, 30 N.Y. 344; Dickinson v. Legate, 1 Desau. Eq. 537; Moddwell v. Keever, 8 Watts & S. 64; Leeschick v. Addison, 19 Abb. Pr. 169; Hewitt v. Sturdevant, 4 B. Mon. 453; Soberheimer v. Wheeler, 45 N.J.Eq. 614; Mussey v. Holt, 24 N.H. 248; Hudson v. McKinsie, 1 E. D. Smith, 358; Cayton v. Hardy, 27 Mo. 536. (5) The dissolved partnership continues in force, in legal contemplation, for the purpose of winding up its affairs, until a full settlement has been had, and all outstanding liabilities have been met. Brown v. Higginbotham, 27 Am. Dec. 618; Ellicott v. Nichols, 48 Am. Dec. 546; Kinsler v. McCants, 53 Am. Dec. 711.

Cloud & Davies for respondents.

(1) The $ 800 note mentioned in the contract of May 20 was not a partnership debt. A. G. Redenbaugh testifies that it was $ 800 that W. H. Collings borrowed to reimburse him for money that he had advanced. 17 Am. & Eng. Encyclopedia of Law, p. 1109, par. 3; Kimball v. Walker, 30 Ill. 482, loc. cit. 514; Drake v. Williams, 18 Kan. 98; Gibbs v. Bates, 43 N.Y. 192; Patterson v. Martin, 6 Ired. (N. Car.) 111; Wright v. Troop, 70 Me. 346. (2) The Texas county decree was competent evidence on the part of defendant. He was a privy thereto as a purchaser from Collings. (3) Redenbaugh had no lien on the stock of goods sold to Collings, and, if he had, could not enforce it in this action. 2 Lindley on Partnership, top page 429; Parker v. Merritt, 105 Ill. 293. (4) The findings of fact by the trial court will be binding in this court. Handlan v. McManus, 100 Mo. 124; Krider v. Milner, 99 Mo. 145; Beck v. Pollard, 55 Mo. 26; Miller v. Breneke, 83 Mo. 163.

Gantt, P. J. Burgess, J., concurs; Sherwood, J., not sitting.

OPINION

[130 Mo. 561] Gantt, P. J.

This is an appeal from the circuit court of Newton county. On the twelfth of May, 1893, a demurrer was sustained to the original petition in the case, and on that day an amended petition was filed, upon which the cause was tried.

The petition alleges, substantially, these facts: That defendants are, and long have been, copartners; that on day of , 1891, plaintiffs were partners under the name of "W. H. Collings & Co.;" that said partnership was organized for the purpose of carrying on a general retail store; to buy at wholesale and sell at retail in the ordinary course of business, at least until Redenbaugh should be fully reimbursed for his capital invested, which amounted to $ 5,000, which amount, he avers, Collings agreed to see he should receive out of the proceeds of the business, in the ordinary course of selling; that their place of business was Noble, Ozark county; that their stock consisted of general merchandise usual in a country store, and was owned by them [130 Mo. 562] in equal shares; that on day of , 1891, Collings, without authority of Redenbaugh, and without his knowledge, and to defraud Redenbaugh and convert the...

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