Ashbaugh v. Sims

• Decision Date: 06 July 1972
• Docket Number: Nos. 25595 and 25661,s. 25595 and 25661
• Citation: 483 S.W.2d 80
• Parties: Fred ASHBAUGH, Respondent, v. Robert M. SIMS, Appellant.
• Court: Missouri Court of Appeals

Page 80

483 S.W.2d 80

Fred ASHBAUGH, Respondent, v. Robert M. SIMS, Appellant.

Nos. 25595 and 25661.

Missouri Court of Appeals, Kansas City District.

July 6, 1972.

Len L. Balke, Kansas City, for appellant.

Robert H. Martin, Independence, for respondent.

PER CURIAM.

These appeals, consolidated here, came to us from judgments entered in the Circuit Court of Jackson County, Missouri, Division No. 16, arising from litigation between two former partners. This litigation was instituted by the respondent, hereinafter called 'plaintiff', against the appellant, hereinafter called 'defendant', by the filing of a petition for dissolution and liquidation of the partnership known as 'Sims and Ashbaugh, Distributor of Amway Products', wherein the plaintiff in Count I of said petition asked for the dissolution of the partnership; the appointment of a receiver pendente lite to take over the assets of that business; and that the partnership affairs be liquidated and a full accounting made. In Count II of plaintiff's petition, he asked for the partition of certain real estate owned by the parties as tenants in common.

In answer to Count I of said petition, the defendant admitted the existence of said partnership; stated that the partners had agreed to dissolve the same as of September 1, 1966, and that it was in fact dissolved on October 1, 1966; that the parties had agreed to settle their respective interests and obligations involved in the dissolution of said partnership, and asked the court to refuse to appoint a receiver, but to determine and declare the parties' respective rights upon dissolution.

In answer to Count II of the petition, defendant admitted the ownership of the real estate as tenants in common, and that the parties had agreed to sell the same and divide the proceeds according to their interests.

The defendant also filed a counterclaim in which he asserted that upon dissolution of the partnership, he and the plaintiff had entered into an oral contract with reference to the business theretofore carried on by the parties as partners, and that as a consideration therefore, he, the defendant, was to retain all distributors theretofore obtained or sponsored by the defendant, with credit for all past bonuses earned on such distributors' business, and that the plaintiff was to act as defendant's sponsor in the further handling of Amway business.

Plaintiff's answer to defendant's counterclaim was in the nature of a general denial.

The trial of this cause was commenced on October 10, 1968 before The Honorable David T. Cavanaugh, Judge of Division No. 12 of the Circuit Court of Jackson County, Missouri. A jury was waived.

At the outset of the trial, the court was advised that the parties had reached an agreement whereby the defendant would purchase the plaintiff's interest in the real estate, and Count II of plaintiff's petition was thereupon dismissed, and it was agreed that the matter would be submitted to the court as a partnership accounting on Count I of plaintiff's petition and on defendant's counterclaim.

Thereafter, Judge Cavanaugh heard evidence on October 10 and 11, and November 1, 1968. The only witnesses who testified were the plaintiff and the defendant. At the close of all the evidence, Judge Cavanaugh, upon oral motion by the plaintiff, dismissed the claim for punitive damages asserted by the defendant in his counterclaim, took the matter under advisement, and requested counsel for both parties to submit to him a complete itemization of what each party contended was owing from the other party. The defendant complied with this direction of the court by filing such a summary on November 26, 1968, and the plaintiff complied with this request of the court by filing such statement on December 9, 1968.

Thereafter, Judge Cavanaugh became ill and subsequently departed this left before rendering any judgment in this cause.

Thereafter, by agreement of the judges and on November 5, 1969, this cause was transferred to Division No. 16, and it was apparently agreed that the cause would be submitted to The Honorable William J. Peters, Judge of that division, upon the transcript of the trial before Judge Cavanaugh, without retrial. It should be noted that during this period, the case was renumbered and the transcript bears two circuit court numbers, but, in fact, there was only one case involved below.

In accordance with that agreement and on July 1, 1970, the court below entered a judgment in favor of the plaintiff upon Count I of his petition in the amount of $1722.73 and disallowed defendant's claims under his counterclaim.

Thereafter and on July 13, 1970, defendant filed his motion for new trial, and on July 21, 1970 the court amended its judgment of July 1, 1970 by giving the defendant an additional credit of $21.00 and entered a new judgment in the amount of $1701.73 and overruled defendant's motion for new trial in all other respects.

Thereafter and on July 28, 1970, defendant filed a motion for new trial on the new judgment, and on the same day filed a notice of appeal to this court from the judgment entered July 1, 1970, and thereafter and on November 2, 1970, the defendant filed a...