Bigham v. Tinsley

• Decision Date: 07 July 1910
• Citation: 130 S.W. 506,149 Mo. App. 467
• Parties: BIGHAM v. TINSLEY.
• Court: Missouri Court of Appeals

130 S.W. 506

149 Mo. App. 467

BIGHAM v. TINSLEY.

Springfield Court of Appeals. Missouri.

July 7, 1910.

Rehearing Denied July 19, 1910.

1. PARTNERSHIP (§ 95)—DISSOLUTION—SALE OF ASSETS—FINDINGS—EVIDENCE.

In an action for the purchase price of plaintiff's interest in a partnership, evidence held to sustain a finding that defendant agreed to pay plaintiff $500, which plaintiff had originally invested in the business.

2. ACTION (§ 22)—NATURE AND FORM—LAW OR EQUITY.

Where plaintiff's right of action arises out of a contract by which his partner agreed to pay him a certain price for his interest in the partnership property, his remedy is at law, and not in equity.

3. ACTION (§ 36)—NATURE AND FORM—LAW OR EQUITY—EQUITABLE DEFENSES.

Where plaintiff sued to recover the price of his interest in a firm, and defendant answered alleging that plaintiff and defendant had been partners, that plaintiff had received from the business a large sum of money belonging to the firm for which he should account, and that such amount could not be determined until there was a partnership accounting, for which defendant prayed, such answer changed the action to one triable in equity.

4. REFERENCE (§§ 24, 99)—NATURE OF ACTION—APPOINTMENT OF REFEREE—CONSENT OF PARTIES.

The fact that an action at law is changed to a suit in equity by an equitable answer does not preclude the parties from consenting to refer the cause; and the report of the referee, when rendered, would not stand as a special verdict, though supported by substantial evidence, but would be regarded as advisory only.

5. APPEAL AND ERROR (§ 1009)—REVIEW— SCOPE—EQUITY CASES.

While an appellate court in equity cases has jurisdiction to review the facts as well as the law, the usual practice is to defer largely to the finding of the trial court, where the evidence was conflicting.

6. PARTNERSHIP (§ 108)—ACCOUNTING—REMEDY.

An action at law cannot be brought by one partner against another for money alleged to be due him on account of partnership transactions, until after a settlement, even though the partnership has been dissolved.

7. PARTNERSHIP (§ 95)—DISSOLUTION—SALE OF INTEREST.

A partner may sell his interest to his copartner and recover the purchase price in an action at law, whether such interest is incumbered or not by the terms of the partnership agreement, or whether the amount is fixed or the price agreed on.

8. PARTNERSHIP (§ 311)—DISSOLUTION—SALE OF INTEREST.

Where a partner sold his interest in the firm to his copartner and thereafter sued for the price, the sale was conclusive as a settlement of the firm affairs between them in such action, and could not be set aside except for fraud or mistake.

9. PLEADING (§ 389) — ISSUES, PROOF AND "VARIANCE."

A "variance," to be available to the defendant, should consist of a failure of plaintiff's proof in its entire scope between the issues made by the pleadings and the evidence offered in their support; and it cannot consist of mere discrepancies nor defects in an imperfect statement of a cause of action.

10. PLEADING (§ 430)—VARIANCE—STATUTES.

Rev. St. 1899, § 655 (Ann. St. 1906, p. 671) declares that no variance between the allegation in the pleading and the proof shall be material, unless it has actually misled the adverse party to his prejudice in maintaining his action or defense on the merits, and when it shall be alleged that a party has been so misled, that fact shall be proved to the satisfaction of the court by affidavit showing in what respect he has been misled, whereupon the court may order the pleading amended, on terms. Held, that an alleged variance can only be taken advantage of by affidavit, showing in what respect defendant has been misled.

Error to Circuit Court, Pemiscot County; Henry C. Riley, Judge.

Action by J. A. Bigham against J. O. Tinsley. Judgment for plaintiff, and defendant brings error. Affirmed.

Ward & Collins, for plaintiff in error. Faris & Oliver, for defendant in error.

NIXON, P. J.

This case was brought from the Pemiscot county circuit court by writ of error issued by the St. Louis Court of Appeals, and has been transferred to this court.

The petition states that from December 5, 1905, to May 23, 1906, the plaintiff at the special instance and request of the defendant sold and delivered to him a certain stock of goods, wares, and merchandise for the sum of $640.64, and that the articles sold as well as the prices charged appeared from an itemized statement attached to the petition.

The defendant's answer contained (1) a general denial, (2) that there had been a partnership existing between plaintiff and the defendant, whereby they carried on a meat market, and also setting out the terms of the original partnership agreement, and (3) that although the plaintiff had collected large sums of money for the partnership, he had failed and refused to account to the defendant as a copartner for such collections, and that the plaintiff is indebted to the defendant in large sums of money by reason of the partnership. Defendant asked judgment for the amount claimed to be due him from the business, and prayed that an accounting be had between the plaintiff and defendant and the partnership dissolved, and for general relief and costs. The reply was a general denial.

By consent of parties, the circuit court appointed a referee to examine the accounts between plaintiff and defendant, and ordered him to make a finding and report to the court. In pursuance of this appointment, the referee proceeded to hear the evidence and to make his findings, and duly filed his report which is as follows:

"I, the undersigned, duly appointed referee by the circuit court of Pemiscot county, Mo., to hear and try the issues in the above-entitled cause, a certified copy of which appointment is hereto attached, do hereby report my proceedings as such referee, as follows:

"I did on the 2d day of June, 1908, take the oath prescribed by law, which said oath is annexed to this report and herewith returned. And on the 25th day of August, 1908, said plaintiff, by his attorneys, Faris & Oliver, and defendant, by his attorneys, Ward & Collins, having waived notice from the referee of the time and place for the hearing of said cause, came and entered their appearance and announced themselves ready for trial, and I proceeded to hear the evidence.

"The evidence offered by both plaintiff and defendant, together with the ruling thereon, will appear by the transcript thereof hereto annexed, which, together with the exhibits offered and referred to in said hearing, make a part of this report.

"I find from the evidence thus adduced in said cause the following facts: That on the ____day of July, 1905, plaintiff and defendant entered into a copartnership to run a meat market in the city of Caruthersville, Mo.; that in forming said copartnership the terms of the agreement were that the plaintiff pay to the defendant a cash sum of $500 and a further sum of $250 to be paid later to defendant for an undivided one-half interest in the meatshop (consisting of tools and good will) theretofore owned and operated by the defendant; that said copartnership so formed continued to run and do business until the____day of December, 1905, when same was mutually dissolved by the parties; that the copartnership as a business venture was a failure, made no money above its expenses, and during its existence contracted numerous debts which remained unpaid at the time of its dissolution; that under the terms of the dissolution the plaintiff on his part agreed to take the accounts due the copartnership and pay off all outstanding indebtedness due from the copartnership and place the same amount of tools and merchandise back in the meat market to be turned over to the defendant, or to make up the shortage thereof in money as were therein at the time of the formation of the copartnership, and that he [defendant] would be held harmless on account of losses in said partnership; that defendant on his part agreed to take back the meat market or butcher shop and return to the plaintiff the $500 he had paid to the defendant.

"I find that the defendant put into said partnership, in cash, the sum of $192.99, in lard and meats on hand at the time of the formation of said partnership, the sum of $367.80, in cattle and hogs furnished the partnership, the sum of $580.60, and in corn and hay fed to cattle and hogs belonging to the partnership, the sum of $186.52, making a total of $1,327.91.

"I further find that the defendant got out of said partnership, in cash, in meats, and in payments of his individual accounts by the partnership, the sum of $837.95; besides, I find that the defendant should also be charged with cattle taken back by him when the partnership was dissolved, amounting to $135.00, hides amounting to $14.00, meats and lard on hand amounting to $325.00; also, furniture account with plaintiff amounting to $29.35, and W. W. Wilson, meat account, amounting to $33.50, making a total of $1,374.80. Subtracting the total amount put into the partnership by defendant from the amount by him taken out, including the accounts herein, I find a difference of $46.89 in favor of plaintiff.

"I further find that the plaintiff sold two pairs of scales for $25 and an ice box and lard press for $110, or a total of $135.00, for which amount defendant is entitled to credit. Plaintiff also owes the defendant two meat accounts, one for $12.80 and one for $86.35, making a total of $99.15. I also find that the defendant paid outstanding accounts of the partnership amounting to $147.68, for which he should have credit. These amounts make a total of $382.83 for which defendant should have credit. Subtracting the $46.89 from this amount, I find a balance due the defendant, $335.94.

"I further find that the defendant has never paid the plaintiff the $500 which he agreed to pay upon the dissolution of the partnership. The $250 agreed to be paid by plaintiff t...