Alexander v. Glasgow
| Decision Date | 14 February 1955 |
| Docket Number | No. 44617,44617 |
| Citation | 365 Mo. 24,275 S.W.2d 339 |
| Parties | Ralph L. ALEXANDER, Administrator of the Estate of Alvin Jens Glasgow, Deceased, Plaintiff-Appellant, v. Irvin O. GLASGOW, Defendant-Respondent, Ivah Glasgow, Third Party Defendant. |
| Court | Missouri Supreme Court |
R. E. Ausmus, Columbia, Alexander, Ausmus, Harris & Welliver, Columbia, of counsel, for appellant.
Ford & Ford, Jones & Jones, Kennett, for respondent.
Action in equity against a surviving partner to adjudge the partnership dissolved (by the death of the other partner) and for appointment of a receiver, liquidation and accounting. Judgment was for defendant (in effect dismissing plaintiff's bill) and plaintiff appealed. The Springfield Court of Appeals affirmed, Alexander v. Glasgow, 270 S.W.2d 161; but on application of plaintiff the case was transferred.
The petition alleged that defendant and his brother Alvin were partners in operating four drug stores in Dunklin County; that Alvin died September 15, 1939; that defendant took possession of the partnership property and conducted the business; that no steps had been taken to administer on the partnership estate; and that Alvin's estate had not received any accounting from defendant or any money from the partnership business. Plaintiff was appointed Alvin's administrator on October 2, 1948. Defendant filed answer denying the allegations about possession of partnership assets and failure to account.
Thereafter plaintiff filed interrogatories which defendant answered showing the following facts. No steps were ever taken by him to administer on the partnership. Three days after Alvin's death, defendant formed a new partnership with Alvin's wife Ivah, which continued until February 15, 1944 and she received half of the not profits of the business. This was done on the advice of Ivah's brother-in-law, an attorney, to save costs. In February 1944, defendant paid Ivah $17,500 for her interest in the business which defendant considered to be one-half. Since that time, defendant operated the business as his own. The business operated at a small loss in 1939 and 1940 but began making profit thereafter. Alvin Ivah had four children who were minors at the time of his death. Defendant stated his conclusion that Ivah also acted in these transactions as trustee for these children but stated no facts to show any authority to bind them or dispose of their interests. Defendant then filed a third party complaint against Ivah asking, if it should be determined that he was obligated to plaintiff, that he should have judgment against her for the full amount.
Thereafter, defendant filed an answer stating the facts set out in his answers to the interrogatories and further stating: 'that at the time of the formation of a new partnership herein referred to between this defendant and Ivah Glasgow, the value of the undivided one-half interest in said partnership business owned by Alvin Jens Glasgow was not in excess of the amount of property that the said Ivah Glasgow would have been entitled to from the estate of Alvin Jens Glasgow as her widow's allowances and other statutory property exclusive of debts and obligations, and this defendant alleges that the said Alvin Jens Glasgow, at the time of his death, did not die possessed of any other property out of which to pay the widow's statutory allowances and absolute property other than the value of the equity of the said one-half interest of Alvin Jens Glasgow in the partnership business; * * * that, taking into consideration the fact that the said Alvin Jens Glasgow left a widow and four minor children, and taking into consideration the fair value of the one-half interest of Alvin Jens Glasgow in said partnership business and debts due and owing by said partnership, that the widow's allowances out of the estate of Alvin Jens Glasgow would have exceeded the value of the equity of said Alvin Jens Glasgow in his undivided one-half interest in said business; * * * that taking into consideration the value of the one-half interest of Alvin Jens Glasgow in the partnership business herein referred to at the time of his death and the partnership debts due by said partnership, that upon proper and timely application Ivah Glasgow, the widow of Alvin Jens Glasgow, would have been entitled to an order of the Probate Court of Dunklin County, Missouri, refusing letters of administration on the individual estate of Alvin Jens Glasgow.' The answer also stated that all creditors of the partnership of defendant and Alvin were fully paid prior to the time plaintiff was appointed administrator and that there were no individual creditors of Alvin. At the time plaintiff was appointed administrator, in 1948, only one of the four children of Alvin and Ivah was a minor; however the other three had reached their majority several years prior to plaintiff's appointment. Reference is made to the opinion of the Court of Appeals, 270 S.W.2d 161, for other facts stated in this answer and in defendant's answers to the interrogatories. Defendant also set up laches and estoppel as a defense because of the facts stated.
Plaintiff filed a motion to strike the paragraphs of the answer alleging this new matter on the ground 'that said matters set forth in said answer do not constitute any defense to the cause of action set forth in plaintiff's petition.' Plaintiff had previously filed a motion for judgment on the pleadings. Both of these motions were overruled. Thereafter, at a pre-trial conference, the cause was submitted to the Court upon the following agreement:
'The Court: It is agreed by both parties that the Court can determine:
'First, whether there was a conversion by Irvin and Ivah,
'Second, the date of the conversion, if any, from all of the facts pleaded in all of the pleadings, including the interrogatories.
'It is agreed by and between the parties that the Court shall first determine and file findings of fact and conclusions of law, based upon the pleadings, to which each party may take exceptions, and upon the overruling or sustaining of the exceptions, of either party, and Court shall enter an order making up the issues of the trial or render final judgment.'
Thereafter, the following judgment was entered against plaintiff and the third party petition was dismissed:
'This cause having heretofore been submitted to the Court on all the pleadings, the interrogatories and answers thereto, and the admissions of the parties at pretrial conference, is again...
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