Cape County Sav. Bank v. Wilson

• Citation: 34 S.W.2d 981,225 Mo.App. 14
• Parties: THE CAPE COUNTY SAVINGS BANK, A CORPORATION, RESPONDENT, v. R. K. WILSON, T. J. HUNTER, C. B. RUFF, W. C. RUFF, R. P. RUFF AND ANNA FOX, DEFENDANTS, C. B. RUFF, W. C. RUFF, R. P. RUFF AND ANNA FOX, APPELLANTS
• Decision Date: 03 February 1931
• Court: Court of Appeal of Missouri (US)

34 S.W.2d 981

225 Mo.App. 14

THE CAPE COUNTY SAVINGS BANK, A CORPORATION, RESPONDENT, v. R. K. WILSON, T. J. HUNTER, C. B. RUFF, W. C. RUFF, R. P. RUFF AND ANNA FOX, DEFENDANTS, C. B. RUFF, W. C. RUFF, R. P. RUFF AND ANNA FOX, APPELLANTS

Court of Appeals of Missouri, St. Louis

February 3, 1931

Appeal from the Cape Girardeau Court of Common Pleas.--Hon. Oscar A Knehans, Judge.

REVERSED AND REMANDED (with directions).

Judgment reversed remanded.

R. P Smith and Robert S. Rutledge for appellants.

(1) (a) The Supreme Court has exclusive appellate jurisdiction in all cases wherein a constitutional question is timely and properly raised by the record. Constitution of Missouri, art VI, sec. 12; State ex rel. v. Kansas City Court of Appeals, 105 Mo. 299, 16 S.W. 853; State ex rel. v. Heffernan, 148 S.W. 90. (b) Appellants are entitled under the Constitution of Missouri, to a trial by jury upon the notes here sued upon. Constitution of Missouri, art. II, sec. 28; Minor v. Burton, 228 Mo. 558, 128 S.W. 964; Berry v. Railroad, 223 Mo. 358, 122 S.W. 1043. (2) (a) Where the probate court has jurisdiction of the subject-matter of a suit or proceeding, it has exclusive original jurisdiction thereof. Brewing Co. v. Steckman, 180 Mo.App. 320, 168 S.W. 226; Kerwin v. Kerwin, 204 S.W. 922. (b) The probate court had such jurisdiction of the subject-matter with respect to the notes herein sued on R. S. 1919, secs. 88 and 186. (c) The probate court had such jurisdiction of the subject-matter with respect to the title to the funds in the estate of Emma Hunter, deceased. R. S. 1919, secs. 62-66 inclusive; Tygard v. Falor, 163 Mo. 234, 63 S.W. 672; Re Estate of Huffman, 132 Mo.App. 44, 111 S.W. 848; Brewing Co. v. Steckman, supra; Clinton v. Clinton, 223 Mo. 371, 123 S.W. 1; Kerwin v. Kerwin, supra. (3) (a) A creditor's bill which does not allege that the creditor has reduced his claim to judgment, is fatally defective. Rumsey-Sikemeier Co. v. Bank, 139 Mo.App. 306, 123 S.W. 672; Coleman v. Hagey, 252 Mo. 102, 158 S.W. 829. (b) A creditor's bill which does not allege that the creditor was an existing creditor at the time his debtor parted with the property sought to be reached, is fatally defective. Coleman v. Hagey, supra; May v. Gibler, 4 S.W.2d 769. (4) A cause of action at law and a cause of action in equity cannot be properly joined, and when commingled in one count, are subject to a demurrer or a motion to strike. Repetto v. Walton, 313 Mo. 182, 281 S.W. 411; Bennett v. Crane, 220 Mo.App. 607, 289 S.W. 26. (5) Where the cause of action is founded upon a written instrument or instruments, those instruments must be filed with the pleadings in the cause. Upon a failure to file the instruments, the cause is subject to a motion to dismiss. R. S. 1919, sec. 1270; Hannibal etc. R. R. Co. v. Knudsen, 62 Mo. 569; Hess v. Appleton Mfg. Co., 164 Mo.App. 153, 148 S.W. 179. (6) An answer which states no defense, like a petition which states no cause of action, is subject to a motion to strike out, or to a demurrer. State ex rel. v. Ellison, 181 S.W. 998. (7) Statements, acts and declarations in the nature of admissions, by one alleged partner, made out of the presence of the other alleged partner or partners, are incompetent and inadmissible in proof of the existence of the alleged partnership, especially before a primafacie case has otherwise been established with respect thereto. Wegman v. Joseph, 191 S.W. 1076; Scott v. Scott, 265 S.W. 864; Bevan v. Hill, 284 S.W. 174; Willoughby v. Hildreth, 182 Mo.App. 80, 167 S.W. 639; Harris v. McQuay, 300 S.W. 305. (8) Where one party to a contract or agreement is dead, the other party thereto is thereby rendered incompetent to testify concerning its terms. This rule applies as well to partnership agreements as to ordinary contracts. R. S. 1919, sec. 5410; Scott v. Scott, 265 S.W. 864; Denny v. Brown, 193 S.W. 552. (9) A plaintiff cannot, especially after trial of the cause, after briefs have been submitted and arguments heard, amend his petition so as to substitute an entirely new and different cause of action for that stated prior to the amendment. Ross v. Mineral Land Co., 162 Mo. 317; Boyd v. St. Louis Brewing Ass'n, 318 Mo. 1206, 5 S.W.2d 46; Arrowood v. Delaney's Estate, 295 S.W. 522; Schroll v. Noe et al., 297 S.W. 999. (10) Absent the necessary elements of a partnership by estoppel, the course of the relationship and the proof necessary to establish it, are identical in a suit by a creditor or other third party, and in a suit between the alleged partners. Mackie-Clemens Fuel Co. v. Brady, 208 S.W. 151; Horine v. Clear, 2 S.W.2d 154. A partnership (absent an estoppel) can only arise by virtue of a contract, express or implied. Furlong v. Druhe, 2 S.W.2d 162; Bevan v. Hill, 284 S.W. 174; Chapin v. Cherry, 243 Mo. 375, 147 S.W. 1084; Mackie-Clemens Fuel Co. v. Brady, supra; Ellis v. Brand, 176 Mo.App. 383, 158 S.W. 705. The existence of a partnership is never presumed, and the relationship never arises by operation of law. The burden of proving its existence is on the party alleging it. Dixon v. Dixon, 181 S.W. 84; Spurlock v. Wilson, 160 Mo.App. 14, 142 S.W. 363; Wittling v. Schreiber, 202 S.W. 418; Chapin v. Cherry, supra; Smith v. Shotliff, 169 Mo.App. 66, 154 S.W. 177. To establish the existence of a partnership, the record must disclose the existence of each of the necessary elements thereof, to-wit: 1. A contract of partnership, express or implied; 2. The joint prosecution of a joint business enterprise; 3. A sharing in the profits and losses as such, in definite proportion; 4. A community of interest in the property and the business; 5. A mutual agency of each for all. Hudson v. French, 241 S.W. 443; State ex rel. v. Daues, 13 S.W.2d 537. (11) Where oral testimony is relied on to establish a resulting trust, contrary to the terms of a deed, the law requires that such testimony must suffice to banish all reasonable doubt from the mind of the chancellor, or a resulting trust will not be decreed against the title conveyed by the deed. Dixon v. Dixon, 181 S.W. 84; Spurlock v. Wilson, 160 Mo.App. 14, 142 S.W. 363; Thompson v. Holden, 117 Mo. 118. (12) (a) No party is liable on a note whose name is not signed thereto, be that party individual, firm, or corporation. R. S. 1919, sec. 805; Mineral Belt Bank v. Lead Co., 173 Mo.App. 634, 158 S.W. 1066; Keck v. Brewing Co., 22 Mo.App. 187; Sparks v. Transfer Co., 104 Mo. 531, 15 S.W. 417. (b) A judgment against one partner for a partnership debt, is a bar to any suit on the same demand against the partnership, and taking such an individual judgment irrevocably waives any right to look primarily to the assets of the partnership. Cowan v. Leming, 111 Mo.App. 253, 85 S.W. 953. (13) A matter once adjudicated by a court of competent jurisdiction may be invoked as an estoppel in any collateral suit, when the same parties or their privies allege anything contradictory to it. Bennett v. Insurance Corp., 213 Mo.App. 421, 255 S.W. 1076; Citizens Bank v. Moore, 215 Mo.App. 21, 263 S.W. 530; Cowan v. Leming, supra. (14) A court of equity does not look with favor on those whose claims are of many years standing, and might have been established by a more timely suit. Goodson v. Goodson, 140 Mo. 206, 216, 41 S.W. 737; Klebba v. Struempf, 23 S.W.2d 205; Jacks v. Link, 291 Mo. 282, 236 S.W. 10. (15) A suit to establish a resulting trust is within the ten-year Statute of Limitations, and is barred after the expiration of ten years from the creation of the trust, or at most, from the time when the cestui discovers or could discover its creation. R. S. 1919, secs. 1305 and 1316; Hunter v. Hunter, 50 Mo. 451; Newton v. Rabenack, 90 Mo.App. 659; Burdett v. May, 100 Mo. 13; Shelby County v. Bragg, 135 Mo. 291, 36 S.W. 600; Kober v. Kober, 23 S.W.2d 149; Jacks v. Link, supra. (16) A resulting trust cannot arise from a transaction founded in any fraudulent purpose. This rule has been held to apply to trusts created to deprive the wife of the cestui que trust of her dower rights. Keener v. Williams, 307 Mo. 682, 271 S.W. 489; Sell v. West, 125 Mo. 621, 28 S.W. 969; Derry v. Fielder, 216 Mo. 176, 115 S.W. 412. (17) The only right which a partnership creditor has, to follow the partnership property and require that his debt be paid therefrom, is a derivative right, not for his own benefit but for the protection of the partners, and is subject to the will of the individual partners. If they waive this right, or forfeit it, the right of the creditor is thereby extinguished. Reyburn v. Mitchell, 106 Mo. 365, 16 S.W. 592; Grocery Co. v. McCune, 122 Mo. 426, 25 S.W. 904; Rumsey-Sikemeier Co. v. Bank, 139 Mo.App. 306, 123 S.W. 75.

Spradling & Dalton for respondent.

(1) The appellants did not preserve the objections and exceptions to the overruling of the demurrer and the motion to strike out in a term bill of exceptions and for that reason, the court should not consider those assignments in the appeal in this cause. Kline Cloak & Suit Co. v. Morris, 240 S.W 96, 99; Sweeney v. Sweeney, 283 S.W. 736; State v. Surety Co., 294 S.W. 123; Asphalt Paving Co. v. Ullman, 137 Mo. 543; Reineman v. Larkin, 222 Mo. 156. (2) (a) For more than thirty years G. W. Hunter and T. J. Hunter were engaged in different enterprises, each contributing a like amount of labor and money and sharing equally in the profits thereof. The first undertaking was farming, after that the livery stable business, then the taxi business and finally, the pool room and billiard business. Each owned an undivided one-half interest in these several undertakings. Part of the money derived from these several undertakings was invested in liberty bonds and with these libery bonds the Schaefer property was acquired. The Sides property was acquired with cash...