67 S.W. 744 (Mo.App. 1902), In re Partnership Estate of COGSWELL & CO.

Citation:67 S.W. 744, 93 Mo.App. 482
Opinion Judge:GOODE, J.
Party Name:In the Matter of the Partnership Estate of COGSWELL & CO.; Heirs of JOHN C. COGSWELL et al., Plaintiffs, Appellants, v. WILLIAM FREUDENAU, Surviving Partner, etc., Defendant, Appellant
Attorney:J. P. Maginn for plaintiffs. R. M. Nichols for Wm. Freudenau, Admr., defendant.
Judge Panel:GOODE, J. Bland, P. J., and Barclay, J., concur.
Case Date:April 01, 1902
Court:Court of Appeals of Missouri
 
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Page 744

67 S.W. 744 (Mo.App. 1902)

93 Mo.App. 482

In the Matter of the Partnership Estate of COGSWELL & CO.; Heirs of JOHN C. COGSWELL et al., Plaintiffs, Appellants,

v.

WILLIAM FREUDENAU, Surviving Partner, etc., Defendant, Appellant

Court of Appeals of Missouri, St. Louis

April 1, 1902

Appeal from St. Louis City Circuit Court.--Hon. Warwick Hough, Judge.

AFFIRMED.

Judgment affirmed.

J. P. Maginn for plaintiffs.

(1) The administrator of John C. Cogswell, although appointed and qualified subsequent to the judgment of the probate court, when thus qualified became the owner of the asset, and was properly a party to the appeal, with the heirs of John C. Cogswell. R. S. sec. 278, p. 181. (2) Mr. Freudenau, having claimed the funds in the treasury at Washington as his individual property, and, being opposed before the treasury department by the heirs of John C. Cogswell, who claimed the fund was partnership estate of Cogswell & Company, conceded the truth of the heir's claim; solemnly swore to its truth in his application to the probate court of the city of St. Louis, for authority, as surviving partner, to administer the fund as partnership estate; presented his certified copy from that court of its authority to him as surviving partner to the department at Washington, received and receipted for the fund as such, deposited the fund in that capacity and drew it out on checks signed by him as such. He is, therefore, forever estopped from alleging that such fund was not partnership estate, and from attempting to assert a right thereto as his individual property as against the legal representatives of his deceased partner. State ex rel. v. Branch, 151 Mo. 639; 2 Pomeroy Eq. Jur., sec. 805; Anderson v. Walker, 49 S.W. 946; Bombeck v. Bombeck, 18 Mo.App. 34; Bigelow, Estoppel, 435, 576; Perryman v. Greenville, 51 Ala. 507; Morris v. State, 47 Tex. 583; McClure v. Commonwealth, 80 Pa. St. 169; U. S. v. Nicolls, 4 Cranch C. C. 290; U. S. v. Bender, 5 Cranch 620.

R. M. Nichols for Wm. Freudenau, Admr., defendant.

(1) The dissolution of Cogswell & Company, in 1864, did not destroy the co-partnership as to collectible assets, so as to prevent or disable the surviving partner to bring suit or take other legal proceedings in the name of Cogswell & Company to collect the assets, and the taking out of letters for that purpose was consistent with his absolute right so to do, regardless of who owned the residuary interest in the fund. Hargadine v. Gibbons, 45 Mo.App. 460; Hargadine v. Gibbons, 114 Mo. 561; Bender v. Markle, 37 Mo.App. 235; Judy & Co., etc. v. Mfg. Co., 60 Mo.App. 114. (2) The asset, so far as creditors of Cogswell & Company were concerned, which was the purpose of the administration, was a partnership asset, and the statement by William Freudenau in his application, as surviving partner, to the probate court, that John C. Cogswell was interested in the property or assets of the co-partnership, consisting of the claim against the United States government in favor of Cogswell & Company, was not untrue or inconsistent with the assignment by John C. Cogswell to William Freudenau, because it was a partnership asset and belonged to the creditors of Cogswell & Company before the right of the individual partner could attach, and William Freudenau's omission to set forth the fact that he was assignee of the rights of John C. Cogswell after the payment of the creditors of Cogswell & Company, was immaterial and foreign to the purpose of the application. McWilliams v. Ramsey, 23 Ala. 819; Bates on Partnership, secs. 183, 715, 756, 1098; Level v. Ferris, 24 Mo.App. 445; Goddard, etc. v. McCune, 122 Mo. 426. (3) While the heirs of Cogswell had no interest, and consequently could not be injured by any act which Mr. Freudenau could do in relation to the fund, but assuming that they had an interest, how have they in any way changed their position by reason of any act done by...

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