Alexander v. Glasgow
| Citation | 270 S.W.2d 161,241 Mo.App. 781 |
| Decision Date | 21 July 1954 |
| Docket Number | No. 7220,7220 |
| Parties | ALEXANDER v. GLASGOW (GLASGOW, third party defendant). |
| Court | Court of Appeal of Missouri (US) |
R. E. Ausmus, Columbia, for appellant.
Ford & Ford and Jones & Jones, Kennett, for respondent.
The petition in this equity suit was filed in Dunklin County, on November 19, 1948. The case went to Mississippi County on change of venue. Judgment was entered against plaintiff-appellant (hereinafter called plaintiff) and he was granted an appeal to the Supreme Court of Missouri.
On April 28, 1953, the Supreme Court of Missouri, of its own motion, ordered that the case be transferred to the Springfield Court of Appeals, because it did not appear that the judgment exceeded $7,500. We shall refer to defendant-respondent as defendant. Ivah Glasgow, third party defendant, apparently did not appeal. She appeared to have sympathized with plaintiff, and, if fact, with plaintiff's attorney, who represented her as third party defendant.
The first paragraph of plaintiff's brief concisely states the facts, as follows:
'This is a suit, in equity, brought by the plaintiff-appellant Ralph L. Alexander, as Administrator of the Estate of one Alvin Jens Glasgow, deceased, and against Irvin O. Glasgow, the defendant-respondent (hereinafter referred to as plaintiff and defendant, respectively), praying for the dissolution of a partnership, an accounting of partnership property and assets, a receivership and distribution of said partnership property and assets to the parties in interest in accordance with their respective rights therein.'
There is no oral testimony and the facts must be determined from the pleadings and the interrogatories. Defendant and his brother, Alvin Jens Glasgow, owned three drug stores in Kennett, Missouri, and another drug store in Arbyrd, Missouri. The relationship between the two brothers was very close and each one of the partners was unusually fond of the other. Alvin Jens Glasgow, herein called the deceased, one of the partners, died on September 15, 1939. The three drug stores in Kennett and the one at Arbyrd were closed for the three days after the death of deceased.
We must admit that the usual proceedings were not observed in this case. No one was appointed as administrator by the Probate Court of Dunklin County, since the deceased died intestate. The widow's portion of deceased's estate was not set off to her. Instead of the usual probate proceedings, which were not observed, they attempted to follow these unusual proceedings, as directed and advised by an attorney-relative of the widow of deceased, in order to save time and expenses. The surviving, partner was apparently unusually kind and thoughtful of deceased's widow, and the children of his deceased brother, who was his former partner. After the death of Alvin Jens Glasgow, on September 15, 1939, defendant Irvin O. Glasgow reorganized the drug business as formerly carried on by the two brothers, and deceased's widow, by the same name, was made a partner with defendant, and they continued such partnership relation until February 15, 1944, on which date said partnership was dissolved and defendant purchased the interest of said widow of deceased, and paid her therefor the sum of $17,745.00, since which time said business have been conducted by the defendant claiming to be sole owner.
In the meantime, deceased's widow had been able to educate her four children in the local schools of Kennett and put them through the State University at Columbia, Missouri. It is hard to imagine better treatment that the accorded the deceased's widow by his former partner, if she was so treated. Yet, in so doing, while not following the law in Missouri applicable to such cases, it is hard to imagine how any business partner could do more for his deceased partner's widow, than the defendant did, and as he was said to have done.
It was not until after all of deceased's children had been educated in the local schools at Kennett, Missouri, and at the State University at Columbia Missouri, where the widow went with her children, that proceedings were instituted on the theory that defendant should have had the affairs of his deceased partner go through the Probate Court of Dunklin County, and that the contract with the widow, testified to by each of them, was not sufficient.
Deceased died on September 15, 1939, and it was not until November 19, 1948, or more than nine years afterward, that it was discovered and alleged in a petition that, instead of making a formal contract with deceased's widow on September 18, 1939, the affairs of such deceased's partner should have been settled by the Probate Court of Dunklin County, and the legal advice of the attorney-relative of deceased's widow, to expedite matters and to save time and costs, could not safely be followed in Missouri.
We are faced with the question of whether or not the steps actually taken were sufficient to relieve defendant of liability at the time this suit was filed. There is no question in our minds that the estate of the deceased partner should not have been handled in the way defendant and the deceased's widow undertook to handle it. The question that disturbs us is whether or not defendant and the widow of deceased should have submitted his estate to the Probate Court of Dunklin County anyhow; and since they did not do so, can this suit be maintained at the present time.
Plaintiff cites Bell v. McCoy, 136 Mo. 552, 38 S.W. 329, decided by the Supreme Court of this State in 1896. There, a surviving partner surrendered a leasehold interest belonging to the firm and took another...
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Alexander v. Glasgow
...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 The petition alleged that defendant and his brother Alvin were partners in operatin......