Anable v. McDonald Land & Mining Co.

• Decision Date: 02 May 1910
• Citation: 128 S.W. 38,144 Mo. App. 303
• Court: Missouri Court of Appeals
• Parties: ANABLE v. McDONALD LAND & MINING CO. et al.

128 S.W. 38

144 Mo. App. 303

ANABLE v. McDONALD LAND & MINING CO. et al.

Springfield Court of Appeals. Missouri.

May 2, 1910.

1. APPEAL AND ERROR (§ 78)—JUDGMENT— FINAL JUDGMENT.

Where one of two defendants demurred to the complaint, and the other answered, and, after the demurrer was sustained, plaintiff refused to plead further, whereupon the action was dismissed and judgment rendered against plaintiff for costs, such judgment was a final disposition of all the parties to the record, and was therefore appealable.

2. PLEADING (§ 214) — DEMURRER — FACTS PROPERLY PLEADED.

For the purposes of a demurrer, all the facts properly pleaded are taken as admitted.

3. PARTIES (§ 76)—INTEREST OF PLAINTIFF— DEMURRER.

The objection that the right of action is in another than plaintiff may be taken by demurrer.

4. PARTNERSHIP (§ 148)—RIGHTS OF PARTNER —SATISFACTION OF CLAIM.

Since each partner is a representative of the firm, a release and satisfaction by one partner of a partnership claim binds the firm.

5. PARTNERSHIP (§ 199) — INDEBTEDNESS — RIGHT TO SUE.

One partner may not sue alone for his proportion of a partnership indebtedness; both partners being equally entitled to determine whether suit should be brought, or whether the claim should be compromised or settled without suit.

6. PARTNERSHIP (§ 148) — LIABILITIES TO THIRD PERSONS—RELEASE—SUIT BY PARTNER.

Where one partner had attempted to settle and release a partnership claim, the other partner could not recover his share thereof at law, on the theory that such release was fraudulent; that his partner was insolvent and had no financial interest in the firm, before the partnership affairs had been settled and an accounting had in equity.

7. CANCELLATION OF INSTRUMENTS (§ 33)— FRAUDULENT RELEASE—EQUITABLE JURISDICTION.

The jurisdiction of equity to cancel a fraudulent release was not abrogated by Rev. St. 1899, § 654 (Ann. St. 1906, c. 670), providing that whenever a release shall be pleaded in bar of plaintiff's cause of action, plaintiff in reply may allege any facts showing that the release was fraudulently procured.

8. PARTIES (§ 35)—JOINDER IN EQUITY.

All persons interested in the subject-matter of a suit in equity must be joined, and, if one whose interest is that of a plaintiff refuses to join, he may be made a defendant; but the bill must show refusal to join as plaintiff as the reason for so doing.

9. PARTNERSHIP (§ 322)—ACCOUNTING—PARTIES —RELEASE.

Where a partner was alleged to have fraudulently released a claim against the firm's debtor, in fraud of the rights of complainant, the other partner, such debtor, by knowingly participating

in the fraud against the firm, made itself a party to the determination of the partnership rights, and was a proper party to a suit between the partners for an accounting, and the court of equity having acquired jurisdiction will proceed to determine the validity of such release and will settle the entire controversy.

Appeal from Circuit Court, Lawrence County; F. C. Johnston, Judge.

Action by W. Anable against the McDonald Land & Mining Company and another. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

I. V. McPherson and H. H. Bloss, for appellant. Spencer, Grayston & Spencer, for respondents.

NIXON, P. J.

1. The appellant herein commenced suit against the respondents, McDonald Land & Mining Company and W. P. Quick, upon a petition in two counts. Defendant Quick filed an answer to the petition. A general demurrer was filed by the McDonald Land & Mining Company, which was sustained by the trial court and judgment entered thereon, and plaintiff has appealed. Respondents object to the appeal for the reason that the judgment rendered was premature, and that no judgment was rendered against defendant W. P. Quick. The judgment, after reciting that defendant McDonald Land & Mining Company had filed a demurrer to both counts of the petition, proceeds as follows: "The said demurrer is sustained to each of the counts pleaded in plaintiff's petition, and, plaintiff having refused to plead further and having elected to stand on said petition, its cause of action is hereby dismissed, and judgment rendered against plaintiff for the costs hereof."

As stated, the demurrer was filed by the McDonald Land & Mining Company alone, and the judgment was on the demurrer; the objection of the respondents to the appeal being that the record does not show there was any disposition of the defendant W. P. Quick, and consequently no appeal would lie. In support of this contention, we are referred to the case of Sater v. Hunt, 61 Mo. App. 228. The plaintiff in that case brought suit against Samuel L. Hunt and Minnie B. Hunt, husband and wife, and against J. W. Raymond, the terre-tenant; the object of the suit being to obtain a personal judgment on a note secured by a mortgage against the two Hunts who were makers, and to foreclose the mortgage. The defendant Raymond admitted the allegations of the petition. The defendant Minnie B. Hunt interposed a general demurrer to the petition which was sustained. Upon the plaintiff refusing to plead further, the court made final judgment in favor of Minnie B. Hunt without making any disposition whatever of the other defendants. It was held that no appeal would lie because a disposition was not made of all the defendants. We are also referred to the case of McVey v. Barker, 88 Mo. App. 515. That was an action of replevin against the city of Laddonia and H. L. Barker. To the petition a demurrer was interposed by the city on the ground that, being a city of the fourth class, an action of replevin could not be maintained against it. The court sustained the demurrer and rendered a final judgment that the city go hence without day and recover costs. The record does not show what disposition was made of the case as to the codefendant Barker. The case of Rock Island Imp. Co. v. Marr, 168 Mo. 252, 67 S. W. 586, is also cited. In that suit there were ten defendants. Three of them filed separate general demurrers which were sustained, and it was ordered that the plaintiff take nothing by said writ, and that the defendants go hence without day and recover from the plaintiff their costs. None of the other seven defendants answered or demurred to the petition, and as to them the case was not disposed of in any manner. It was held that the judgment entered was not final, as it did not make a disposition of all the defendants in the case.

In each of the above cases—and many others to the same effect may be found—the demurrant was discharged, awarded his costs, and no disposition was made in the judgment as to the other defendants or as to the case itself. In the present case, however, unlike the cases cited, the judgment recites that, the plaintiff refusing to plead further and electing to stand on his petition, "his cause of action is hereby dismissed and judgment rendered against the plaintiff for the costs hereof." When plaintiff's cause of action was dismissed and judgment rendered against the plaintiff for costs, it made a final disposition of the case and necessarily of all the parties to the record, and this case is consequently not to be classed with the cases cited by respondents, in that the judgment here finally disposed of the case and all the parties to the record.

2. There are two counts in the petition, which are as follows (caption omitted):

"(1) Plaintiff for cause of action states that the defendant McDonald Land & Mining Company is a corporation organized under the laws of the state of New York and engaged in the business of owning timber and mining lands in the state of Missouri and furnishing railroad cross-ties, etc., and was so engaged and organized at and during all the times hereinafter mentioned. Plaintiff further states that during the year 1904 he and one W. P. Quick entered into a contract with the defendant McDonald Land & Mining Company, by which it was agreed that the plaintiff and said Quick were to furnish for the defendant 5,000 railroad cross-ties at the agreed price and sum of 25 cents per tie, and, in pursuance of said contract, the plaintiff and said Quick did deliver to the defendant McDonald Land & Mining Company the agreed number of ties above mentioned, and, on account of the premises, there became due the plaintiff and said Quick from said defendant the sum of $1,250, which sum was all due and payable January 1, 1905, at which time the plaintiff demanded of the said defendant the sum aforesaid.

"Plaintiff further states that, in the prosecution of the work and in furnishing said ties, he personally furnished all the means and paid for all labor and everything else necessary in so furnishing said ties, and that said Quick, while nominally a partner and jointly interested by virtue of said contract in furnishing said ties, was insolvent and had no means, and the burden of complying with said contract was on the plaintiff, and said Quick never has furnished any of the means to fulfill said contract; that while said Quick and plaintiff were during said year, 1904, jointly engaged in business as partners and so jointly interested in said contract, said Quick was irresponsible and had no means, and the entire burden of paying all liabilities and complying with all contracts and furnishing the means therefore fell on this plaintiff, and on accounting had between them there was nothing whatever due from the credits that were nominally payable to said firm to said Quick, but all such credits would be...