Brewer v. Swartz

• Decision Date: 05 May 1902
• Citation: 94 Mo. App. 392,68 S.W. 362
• Parties: BREWER v. SWARTZ.
• Court: Missouri Court of Appeals

68 S.W. 362

94 Mo. App. 392

BREWER v. SWARTZ.

Court of Appeals at Kansas City, Missouri.

May 5, 1902.

ACTION BETWEEN PARTNERS — PREVIOUS SETTLEMENT — SUFFICIENCY OF PETITION — INSTRUCTIONS.

1. Plaintiff retired from a firm, defendant, his partner, agreeing to pay him one-half of certain specified claims when collected. Plaintiff thereafter sued as for a dissolution of the partnership, setting out the written agreements as the basis of his interests. On appeal the case was decided to be an action at law, and on remand the parties proceeded on that theory, but without amending their pleadings. The only allegations as to plaintiff's right to recover were the written agreements showing defendant's contingent obligation, without any averments of present indebtedness or promise to pay. Held, that the petition was insufficient for any evidence to be admitted thereunder.

2. Where plaintiff sued on a writing whereby defendant obligated himself to pay him one-half of certain claims when they were collected, an instruction that, if defendant had collected any of the accounts mentioned in the writing, the jury must find for plaintiff for such sums, less defendant's expense in making the collections, was obvious error.

Appeal from circuit court, Jackson county; E. P. Gates, Judge.

Action by A. P. Brewer against George Swartz. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Kinley & Kinley, for appellant. Meservey, Pierce & German, for respondent.

BROADDUS, J.

We gather from the record that prior to the 1st day of March, 1893, the plaintiff and defendant were partners as wholesale lumber merchants, and that on said day the copartnership was dissolved and the partnership matters adjusted. By the terms of the settlement defendant was to pay the plaintiff a certain sum, to pay all the outstanding debts of the concern, and to succeed to all the rights and property of said partnership. At said settlement there were special agreements as to certain matters, which gave rise to this suit. These agreements were two in number, and were evidenced by writing as follows, viz.: "Kansas City, Mo., March 1st, 1893. George Swartz & Co. owe La Belle Wagon Works, of South Superior, Wis., for freight on car No. 284. We estimate the amount to be $120. Having dissolved partnership, I receiving all moneys and paying all debts of the firm, I have received from A. P. Brewer his share of the above debt. [Signed] George Swartz." "Kansas City, Mo., March 1, 1893. I promise to pay, on demand, to A. P. Brewer, or his order, the half of all money received from unsettled accounts as soon as said accounts are adjusted and paid to me; an account against Farley & Loetscher Mfg. Co., Dubuque, Ia amounting to $237.80; and an account against Cloquet Lumber Co., Cloquet, Minn., amounting to $755.33; several small accounts against railroads for overcharge in weights and rates. There is also two checks out calling for $52.09. If not presented for payment on or before July 1st, 1893, I will pay A. P. Brewer the one-third of them also, and A. P. Brewer pledging himself to pay the one-third if the checks should be presented for payment in the future. [Signed] George Swartz." As to the item in the first writing, the plaintiff claims, substantially, that the said La Belle Wagon Works disclaimed any indebtedness to it upon the part of said firm; therefore defendant did...