Clarke v. Ross

• Decision Date: 23 October 1894
• Citation: 60 N.W. 627
• Parties: CLARKE v. ROSS. ENSMINGER v. ROSS.
• Court: Iowa Supreme Court

60 N.W. 627

CLARKE

v.ROSS.

ENSMINGER

v.ROSS.

Supreme Court of Iowa.

Oct. 23, 1894.

Appeal from district court, Buchanan county; John J. Ney, Judge.

These two cases were submitted upon the same arguments, and may be disposed of in one opinion. The petitions in the cases are in two counts. In the first it is alleged that for several years prior to January 15, 1891, Edward Ross and V. F. Weiser were a partnership engaged in the milling business at Otterville, Iowa, under the firm name and style of V. F. Weiser & Co.; that on January 15th Edward Ross died, leaving V. F. Weiser his sole surviving partner; that at the death of said Ross the firm had on hand $5,000 or $6,000 of manufactured product, raw materials, and notes and accounts; that for the purpose of effecting a settlement of the partnership business the defendant entered into a contract with V. F. Weiser, by the terms of which she agreed to pay a certain note of plaintiff, signed by V. F. Weiser and others, on condition that said Weiser would turn over to her all his interest in and to the partnership property, as well as a certain millstone dresser and a boat belonging to him individually, together with a lot in the town of Otterville; that defendant assumed to be acting as the executrix of the estate of Edward Ross, in the transaction in question, so far as the partnership property was concerned, but in fact she had no authority to so act; that defendant took possession of the individual and partnership property aforesaid, and has ever since used the same as her own; that the note which the defendant agreed to pay, as part consideration for the property so received, was an accommodation note given for the benefit of the firm of Weiser & Co., and that the money received from the plaintiff thereon was used by the copartnership in the copartnership's business, and the note was given as evidence of the indebtedness of the copartnership to the plaintiff; that the defendant has all the copartnership's property, and the partnership business was settled by the agreement aforesaid. In the second count the plaintiff alleged that the notes before referred to were given to raise money for the benefit of the partnership, and the money received thereon was used in the partnership business; that defendant has all the copartnership property, amounting to $5,000 or $6,000, and all the individual property of V. F. Weiser; that she came into the possession of the same by virtue of a settlement with the surviving partner; that she took the property in her individual capacity, and has converted the partnership property to her own use. The petitions are, in form and substance, exactly alike. Defendant's answer to these petitions was a general denial of each allegation in the first count; and she further alleges that she is and was duly appointed executrix of the will of Edward Ross, deceased, and as such she took charge of and sold the mill in question; that on and after November 1, 1889, there was no partnership between Ross and Weiser in the running of the mill; that from and after that date the mill belonged to Ross, and Weiser was his employé; that all of the property pertaining to or connected with the mill was appraised at the sum of $5,082.37, and that the claims filed, exclusive of the plaintiff's, amounted to $8,678.09; that according to the terms of the written contract, on which the first count of the petition is based, plaintiff's claims must have been filed and proved as valid claims against V. F. Weiser & Co. and against the estate of E. Ross before she could be held liable thereon; that these conditions have not been complied with, but on the contrary the claims were disallowed by the probate court of Buchanan county as claims against the estate. She also states that she is the heir at law and a legatee under the will of E. Ross, and that she made the contract on which suit was brought in her capacity as executrix. In answer to the second count she denies the allegations thereof, and further stated that she took possession of the property as executrix, and has inventoried, appraised, and fully accounted for the same; that the claims filed against the estate amount to more than the assets; and that the claims of the plaintiffs have already been adjudged not to be claims against the estate. On the issues thus presented the cases were tried to the court without a jury, and judgments were rendered for the plaintiffs, and defendant appeals. Affirmed.Lake & Harmon, for appellant.

Woodward & Cook, for appellees.

DEEMER, J.

The contract entered into between V. F. Weiser and defendant, upon which the first count of the petition is based, among other things, provides that: “Whereas, the said V. F. Weiser and E. Ross heretofore entered into a copartnership to operate the Otterville mill, in said county under the firm name of V. F. Weiser & Co., which copartnership has continued, by mutual consent and agreement, until the present date; and whereas, the death of E. Ross necessarily terminated said copartnership; now, then, it is agreed by the parties hereto to settle all matters connected with said partnership in manner and form as follows, to wit: First, that V. F Weiser, partner as aforesaid, agrees to go out and surrender and hand over to the said Margaret R. Ross, executrix as aforesaid, said mill and all therein to this date, both manufactured product and raw material of all kinds held for products, and all books of account, bills, memoranda, and papers of all kinds in any relating to the business of said mill during the copartnership, with all value thereof as the said books and bills on true balance may show; and further the said V. F. Weiser, partner as aforesaid, agrees to leave for the use of the mill the machine or device known as the ‘Diamond millstone dresser,’ and also the boat used on the pond for repairing the milldam and other use on or about the water; and also the said V. F. Weiser agrees to convey, by full and sufficient warranty deed, to the said Margaret R. Ross, for the use of the mill property, that piece and parcel of land between the mill and the bridge, and known as ‘lot B’ in the village plat of Otterville (said last three items, to wit, the Diamond millstone dresser, boat, and village lot, being the individual property of V. F. Weiser). * * * Second. Margaret R. Ross, executrix aforesaid, agrees, on her part, to take care of and pay all paper or notes made and executed by the said V. F. Weiser & Co. for repairs or extension of mill, and for running expenses of same, now held by the People's National Bank, and surrender to said V. F. Weiser certain notes now held by the estate of E. Ross; * * * and further, with respect to two certain notes for $500.00 each, dated December 10, 1885, and payable to E. Ross or bearer, and signed by V. F. Weiser, Andrew Weiser, Martin A. Weiser, and Anton Weiser, one held by Martha S. Clark and the other by J. M. Ensminger, it is agreed by the parties that if said notes are lawfully filed and proved against V. F. Weiser & Co. and the estate of E. Ross, deceased partner of the milling firm of V. F. Weiser & Co., then the said...