Bigham v. Tinsley

• Decision Date: 07 July 1910
• Citation: 130 S.W. 506,149 Mo.App. 467
• Parties: J. A. BIGHAM, Defendant in Error, v. J. O. TINSLEY, Plaintiff in Error
• Court: Missouri Court of Appeals

130 S.W. 506

149 Mo.App. 467

J. A. BIGHAM, Defendant in Error, v. J. O. TINSLEY, Plaintiff in Error

Court of Appeals of Missouri, Springfield

July 7, 1910

Appeal from Pemiscot Circuit Court.--Hon. Henry C. Riley, Judge.

Judgment affirmed.

Ward & Collins for plaintiff in error.

(1) There is an absolute variance between the plaintiff's petition and the proof adduced and a judgment for him cannot be sustained. Stix v. Matthews, 75 Mo. 96; Summers v. Rodgers, 90 Mo. 224; Wesley v Bowers, 58 Mo.App. 422. (2) This is an action at law for the purchase price of goods, wares and merchandise, and cannot be maintained by one partner against his co-partner to recover money due on account of partnership transactions where no settlement of the account and business has been had. Stothert v. Knox, 5 Mo. 112; Springer v Cabell, 10 Mo. 640; McKnight v. McCutchen, 27 Mo. 436; Smith v. Smith, 33 Mo. 537; Scott v Caruth, 50 Mo. 120; Mulhall v. Cheatham, 1 Mo.App. 476. (3) The fact that the co-partnership had ceased to do business is not material, it still exists for the purpose of liquidation. Ross v. Carson, 32 Mo.App. 148; Hargadine v. Gibbins, 114 Mo. 561; Jackson v. Powell, 110 Mo.App. 249. (4) An unsettled partnership balance can only be reached by a bill in equity, praying an accounting. Wetmore v. Crouch, 55 Mo.App. 441. (5) This being an action in equity, the referee's report is not a special verdict, but the evidence can be examined, and such finding is not conclusive upon either the trial or appellate court. Plaza Hotel Co. v. Dines, 116 S.W. 1121; Heman v. Brittan, 14 Mo.App. 121; St. Louis Co. v. Bissell, 41 Mo.App. 426; O'Neal v. Capelle, 62 Mo. 202; Mack v. Wurnsell, 135 Mo. 58. (6) And the trial court and this court may review the various items and allow or reject the same as it may deem proper. Smith v. Parish, 70 Mo. 615; State ex rel. v. Hurlston, 92 Mo. 327.

Faris & Oliver for defendant in error.

(1) This court will not weigh the evidence nor disturb the finding of the referee, for it stands as a special verdict, when supported by substantial evidence. Martin v. Whites, 128 Mo.App. 127; Bader v. Mill Co., 134 Mo.App. 143; Grocery Co. v. Fidelity & Guaranty Co., 130 Mo.App. 424; Howard County v. Baker, 119 Mo. 397; Vogt v. Butler, 105 Mo. 479. (2) If the settlement was had, as the plaintiff testified, and as the referee found, then there is no variance between the pleadings and the proof. But defendant did not in the trial below avail himself of the only procedure provided for him in section 655 R. S. 1899, and cannot now be heard to complain. Brown v. Railroad, 50 Mo. 461; Clydesdale Horse Co. v. Bennett, 52 Mo.App. 333; Ely v. Porter, 58 Mo. 158; Randell v. Railroad, 102 Mo.App. 342; Fisher Real Estate Co. v. Staed Co., 159 Mo. 562.

OPINION

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, 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 co-partner 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 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, Missouri, 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 co-partnership to run a meat market in the city of Caruthersville, Mo.; that in forming said co-partnership the terms of the agreement were that plaintiff pay to the defendant a cash sum of five hundred dollars and a further sum of two hundred and fifty dollars to be paid later to defendant for an undivided one-half interest in the meat shop (consisting of tools and good will) theretofore owned and operated by the defendant; that said co-partnership so formed continued to run and do business until the day of December, 1905, when the same was mutually dissolved by the parties; that said co-partnership 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 co-partnership and pay off all outstanding indebtedness due from the co-partnership 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 co-partnership, 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 plaintiff the five hundred dollars 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 $ 1327.91.

"I further find that 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, hides amounting to $ 14, meats and lard on hand amount to $ 325; also, furniture account with plaintiff amounting to $ 29.35, and W. W. Wilson meat account amounting to $ 33.50, making a total of $ 1374.80. 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, 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 to defendant was never paid. Deducting $ 335.94 from the $ 500, I find that the defendant owes the plaintiff the sum of $ 164.06 on a final settlement on all matters and items involved in this cause.

"I therefore recommend that judgment be rendered in favor of the plaintiff for the sum of $ 164.06, and for his costs.

"All of the said papers, exhibits, evidence, orders, proceedings and report are herewith returned to court, as witness my hand this the 24th day of November, 1908.

"EVERETT REEVES, Referee."

Judgment was entered for the plaintiff for the amount found by the referee to be due him, $ 164.06. Exceptions to the referee's report were filed and overruled and the referee's report was by the court approved. The defendant below has sued out the writ of error.

The findings of the referee were, in effect, that there had been a partnership between plaintiff and defendant in carrying on a meat market in the city of...