Burress v. Blair

• Decision Date: 31 October 1875
• Parties: JOHN W. BURRESS, Respondent, v. E. R. BLAIR, Appellant.
• Court: Missouri Supreme Court

61 Mo. 133

JOHN W. BURRESS, Respondent,

v.E. R. BLAIR, Appellant.

Supreme Court of Missouri.

October Term, 1875.

Appeal from Pettis County Circuit Court.

Durham & Sangree, and Snoddy & Bridges, for Appellant.

I. The moment the money was deposited in the bank, it was the property of the bank, who then became the debtor of the firm to the amount so deposited, payable on demand, and the $1,614.26 was one of the accounts due the firm. (Chapman vs. White, 3 Seld., [6 N. Y.] 412; Maine Bk. vs. Fulton Bk., 2 Wall., 252; Cote vs. U. S. Bk., 3 Cr. C. Ct. R., 50, 95; Carroll vs. Cone, 40 Barb., 220; Marsh vs. Oneida Central Bk., 34 Barb., 298; Wetchum vs. Stevens, Duer, 463; affirmed, 79 N. Y., 499; Beckwith vs. Union Bk., 4 Sanf., 604; Comm. Bk. vs. Hughes, 17 Wend., 94; Dykers vs. Leather Manf'g Bk., 11 Paige, 612; In re Franklin Bk., 1 Paige, 294; Jermain vs. Denniston, 2 Seld., [6 N. Y.], 276; 17 Wend., 94, 101; 1 Met., [Mass.] 216; 1 Hump., [[[Ark.] 114; 3 Am. Law Reg., 319; 9 Id., 191; 7 Id., 183; 8 Id., 754; 11 Id., 171.)

II. The court erred in submitting to the jury the interpretation of the contract. Its construction and interpretation were plain and belonged exclusively to the court. (See Pars. Contr., vol. 2, [5th Ed.] 492; State to use vs. Le Faivre, 53 Mo., 470.)

Phillips & Vest, for Respondent.

I. There was no error in the Circuit Court permitting the case to be tried by a jury. This is an action for the recovery of money only, and it was therefore proper that it should be tried by a jury. (2 Wagn. Stat., ch. 110, art. 9, § 12; Bray vs. Thatcher, 28 Mo., 129; Conran vs. Sellew, 28 Mo., 320; Peyton vs. Rose, 41 Mo., 257.)

The question in this case was one of intent, and terms of the written agreement are doubtful; where such is the case, the court will refer the question to a jury. (See Greenl. Ev. §§ 277-278 and notes; Bunce vs. Beck, 43 Mo., 266.)

II. The meaning of the contract being doubtful, evidence was proper as to its subject matter, and the circumstances under which it was made. (Bunce vs. Beck, 43 Mo., 266; Schuetze vs. Bailey, 40 Mo., 69; Newark & Madison R. R. vs. Sandford, 8 Vroom; 1 Greenl. Ev., §§ 277, 286, 287, and notes; 2 Pars. Contr., pp. 11, 59, 76.)

III. Under the agreement of dissolution, defendant purchased only plaintiff's interest in the goods and business of the store, and the notes and accounts due the firm for goods sold; but the money in bank was not included. Whilst a bank account may be considered an account, yet in ordinary business, and as generally understood, money in bank on deposit is considered as so much cash on hand, and not as an account; it is an unliquidated and uncollected debt. (1 Bouv. Law Dict., pp. 33, 187.)

VORIES, Judge, delivered the opinion of the court.

The petition in this case, charged in substance that on the 16th day of August, 1872, plaintiff and defendant were partners in buying and selling ready-made clothing, &c., in the town of Sedalia, in Pettis county; that by the terms of the partnership they were equal owners of all the assets and profits of said business; that on the said 16th day of August, 1872, by written agreement executed by the parties, said partnership was dissolved; that for the consideration of twelve hundred dollars plaintiff sold and conveyed to defendant all of plaintiff's right, title and interest in the store occupied by said firm, with all notes and accounts due said firm; and it was further agreed that the defendant should pay all of the debts and claims against said firm; that at the time of the dissolution of the partnership there was on deposit to the credit of said firm, in a banking house named, the sum of $1,614.26, it being a part of the assets of said firm; that one-half of said sum belonged to the plaintiff; that upon the dissolution of said partnership as aforesaid, defendant wrongfully took possession of said sum and refuses to pay to plaintiff one-half thereof or any part thereof. Wherefore judgment is prayed, etc.

The defendant, in his answer, admits the partnership, its dissolution at the time named in the petition, and that there was due the firm, on account of money, deposited by said firm, from the bank named, the said sum of $1,614.26; but defendant denies that any part of said sum belonged to the plaintiff, or that he wrongfully withheld the same from plaintiff. The defendant then avers that said sum of $1,614.26 was deposited in said banking institution at various times by said firm in the usual course of business for their own convenience, and that the same was placed in said bank as a general deposit, payable to them on demand, and that by the terms of said agreement of dissolution the right to demand and receive the said money, became vested in defendant, and that said banking house became the debtor of defendant, all of plaintiff's right to any part thereof having been transferred by said agreement of dissolution by plaintiff to defendant. A copy of the agreement was filed with the answer.

The plaintiff replied to this answer, denying that the plaintiff's right to a part of the fund in the bank was transferred to the defendant by the agreement of dissolution, or that said money, or the right to demand or receive the same, became vested in the defendant by said agreement, etc.

In January, 1874, the case came on for hearing. The counsel on each side suggested that the only question to be tricd was the construction of the contract of dissolution mentioned in the pleadings, as to whether the deposit account in bank mentioned in the pleadings passed to the defendant by the terms of said contract of dissolution--that it was a question for the court and not for a jury. The court ordered the pleadings to be read, so that it might determine whether evidence would be heard on the issues, and after hearing the pleadings the court announced that it was unable to determine from the contract itself what was the intention of the parties as to the disposition of said bank account; that evidence would be heard on the same, and that on this question the parties could have a jury, whereupon the plaintiff demanded a jury. The defendant objected to calling a jury, on the ground that it would be submitting to a jury the construction of a written contract. The court overruled the defendant's objection, and impaneled a jury. The defendant excepted.

The plaintiff then read in evidence the contract of dissolution referred to by the parties, which is as follows:

“Know all men by these presents that the copartnership heretofore existing between E. R. Blair and J. W. Burress, under the firm name of Blair & Burress, in the clothing business on South Main street, in the city of Sedalia, is this day dissolved by mutual consent of the said partners, on the following terms, to-wit: Said Blair, for and in consideration of the sum of $600 in hand paid to said Burress, and also for the further consideration of $600 to be by him paid in thirty days from this sale, has purchased all the right, title and interest of said Burress in the said store, with all notes and accounts due the said firm; and it is further agreed and understood by the said Blair that he will pay all the debts of the firm and settle up all claims against the same. In testimony whereof we, the parties, have hereto set our hands and seals this 16th day of August, A. D., 1872.”

This contract was signed and sealed by the parties.

The defendant objected to the reading of the contract to the jury, on the ground that the contract should be construed by the court, and that there was no question of fact to submit to a jury in reference thereto. This objection was overruled, and the defendant excepted.

The plaintiff was then introduced as a witness, and was permitted to testify as to the value of goods on hand at the time of the dissolution; the amount of debts due to and from the firm; the amount for which the goods were insured. He also testified as to a transaction betwen him and defendant in reference to the assignment of policies of insurance on the goods of the firm; also as to certain agreements between the parties at the time of forming the partnership, in reference to checking out money deposited in bank, and generally as to their manner of doing business. This evidence was all objected to by the defendant as given, on the ground of its irrelevance and incompetence, and because it was calculated to mislead the jury, and was not competent to explain or vary the written contract. In fact, defendant objected to all oral evidence in the case, for the reasons above...