Brewer v. Swartz

• Decision Date: 05 May 1902
• Citation: 68 S.W. 362,94 Mo.App. 392
• Parties: A. P. BREWER, Respondent, v. GEORGE SWARTZ, Appellant
• Court: Kansas Court of Appeals

68 S.W. 362

94 Mo.App. 392

A. P. BREWER, Respondent, v. GEORGE SWARTZ, Appellant

Court of Appeals of Missouri, Kansas City

May 5, 1902

Appeal from Jackson Circuit Court.--Hon. E. P. Gates, Judge.

REVERSED AND REMANDED (with directions).

Reversed and remanded.

Kinley & Kinley for appellant.

(1) The petition in this case did not authorize a recovery of a money judgment against the defendant, for the reason that no judgment was asked for the recovery of any sum of money, the only prayer being for a dissolution of a partnership, etc. Nor are such facts stated in the petition as to enable the defendant or the court to ascertain the amount demanded. R S. 1899, sec. 592; Carter v. Shotwell, 42 Mo.App 663; Miltenberg v. Morrison, 39 Mo. 71; Meyers v. Field, 37 Mo. 434. (2) The counterclaim set up by defendant in his answer was ignored by the jury in their verdict, and in this respect the verdict was not in accordance with the instructions. (3) The instructions given for plaintiff misdirected the jury as to the assessment of damages.

Meservey Pierce & German for respondent.

(1) The petition is sufficient. (2) The decision of this court, on the former appeal, is res adjudicata as to this question. Chapman v. Railway, 146 Mo. 481; Eisenburg v. N. T. & L. H. Assn., 72 Mo.App. 513; Thompson v. Irwin, 76 Mo.App. 418. It is very easily determined from an examination of the whole petition just what relief plaintiff is entitled to. Liese v. Meyer, 143 Mo. 547; Gunnell v. Emerson, 80 Mo.App. 322. (3) Any informality in the verdict was waived by defendant, as he did not file a motion in arrest of judgment. Stone v. Taylor, 72 Mo.App. 482; Rothschild v. Lynch, 76 Mo.App. 339; Rothrock v. Lumber Co., 80 Mo.App. 510; Hopper v. Hopper, 84 Mo.App. 117. (4) The error complained of in plaintiff's instruction number 2 is not sufficient to warrant a reversal. It is always to be presumed that the jury have read all of the instructions before arriving at a verdict. Voegeli v. Marble & Granite Co., 56 Mo.App. 678; Yocum v. Town of Trenton, 20 Mo.App. 489; Fischer v. Packing & Provision Co., 77 Mo.App. 108; Crawford v. Doppler, 120 Mo. 362; Thornberry v. Thompson, 18 Mo.App. 421; Keen v. Schweigler, 70 Mo.App. 409; Deweese v. The Merimac Iron Mining Co., 54 Mo.App. 476; and affirmed in the Supreme Court, 128 Mo. 423; The Single & Talcott Stone Co. v. Sinclair, 10 Mo.App. 593; Boller v. Cohen, 42 Mo.App. 97; Reilly v. Railroad, 94 Mo. 600; Harrington v. Sedalia, 98 Mo. 583; Shortel v. St. Joseph, 104 Mo. 114; O'Connell v. Railroad, 106 Mo. 482; Bradford v. Floyd, 80 Mo. 207; Ritchey v. Huntley, 73 Mo.App. 258; Wetzell v. Wagoner, 41 Mo.App. 509; McKeon v. Railway, 43 Mo. 405; Burdoin v. Trenton, 116 Mo. 358; Ephland v. Railway, 57 Mo.App. 147; Noble v. Blount, 77 Mo. 235; Schooler v. Schooler, 18 Mo.App. 69; Swafford v. Spratt, 93 Mo.App. 631; Fugate v. Miller, 109 Mo. 281; R. S. 1899, sec. 865; Orth v. Dorschlein, 82 Mo. 366; Burns v. City of Liberty, 131 Mo. 372; Schwacker v. Dempsey, 83 Mo.App. 342; Eddy v. Lafayette, 49 F. 807, affirmed by the United States Supreme Court. 16 Supreme Court Rep. 1082.

OPINION

BROADDUS, J.

--We gather from the record that prior to the first day of March, 1893, the plaintiff and defendant were partners as wholesale lumber merchants and that on said day the co-partnership 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 1, 1893.

"George Swartz & Co. owe LaBelle Wagon Works of South Superior, Wisconsin, 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, Iowa, amounting to $ 237.80; and an account against Cloquet Lumber Company, Cloquet, Minnesota, 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 1, 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 LaBelle Wagon Works disclaimed any indebtedness to it upon the part of said firm, therefore, defendant did not pay it the $ 120 mentioned; wherefore the plaintiff is entitled to recover the one-half thereof from the defendant. The plaintiff then claims that the small accounts against railroad companies for overcharges in weight and rates, referred to in said second writing, amounted to $ 100, which the defendant has collected and failed to pay to plaintiff on demand. From all we can make out from the plaintiff's petition, the two items mentioned are the only ones in controversy. It seems to have been the intention of the plaintiff to make his case one for a dissolution of the partnership, but this court decided on appeal that it was an action at law; that the partnership had already been dissolved and the partnership matters settled save those enumerated. Brewer v. Swartz, 83 Mo.App. 451. Instead of amending their pleadings so as to conform to the ruling of this court, the parties proceeded to trial upon them as they stood formerly, on account of which some confusion must have occurred at the trial, judging by the result.

The defendant objected to the introduction of any evidence under the petition because it did not state a cause of action which objection was overruled. We think it should have been sustained, for there is not a single allegation therein that amounts to a claim of any indebtedness on the part of the defendant to the plaintiff or that defendant ever promised to pay him anything, or to do anything...