Dalpine v. Lume

• Decision Date: 16 November 1909
• Citation: 145 Mo. App. 549,122 S.W. 776
• Parties: DALPINE v. LUME et al.
• Court: Missouri Court of Appeals

122 S.W. 776

145 Mo. App. 549

DALPINE v. LUME et al.

St. Louis Court of Appeals. Missouri.

November 16, 1909.

1. COMPROMISE AND SETTLEMENT (§ 19)—IMPEACHMENT—MISTAKE.

A compromise will not be disturbed by a court of equity because of a mistake either of law or fact, in absence of inequitable conduct of the other party affecting the complaining party.

2. COMPROMISE AND SETTLEMENT (§§ 5, 19)— NATURE OF TRANSACTION — COMPROMISE OR SETTLEMENT.

Where the accounts of a partnership were examined, and a balance struck, after an inventory was made in the presence of all the parties, and some $60 was found to be due a partner as his share, his offer to take $100 and retire from the firm was an offer to compromise, and not a final settlement, and he cannot have it set aside because of any mistake in striking the balance.

3. EQUITY (§ 66) — MAXIMS — NECESSITY OF DOING EQUITY.

One coming into equity must do equity, and cannot repudiate a transaction without returning to the other party what he has received thereunder.

4. PLEADING (§ 72)—EQUITY—OFFER TO DO EQUITY.

A general prayer for relief and offer to do equity is sufficient, in order to invoke the powers of equity to set aside an inequitable transaction, without specifically pleading a tender of the money received thereunder, as the court will require complainant to put the other party in statu quo as the price of its decree.

Appeal from St. Louis Circuit Court; Moses N. Sale, Judge.

Suit by Ugo Dalpine against Angelo Lume and others. From a judgment for defendants, plaintiff appeals. Affirmed.

This is a suit by plaintiff against his former partners, the defendants, to set aside what is alleged to be a settlement arrived at between them on the dissolution of the partnership. The original petition charged fraud and mutual mistake, and avers: That, relying upon the representations of the defendants and correctness of figures, plaintiff had received and accepted the sum of $70.39 in full settlement of his interest in the partnership business and withdrew from the firm; that the defendants appropriated to themselves all the balance of the accrued profits of the partnership business, which plaintiff alleges were of the value of about $3,611.30, net, in which he avers his share is $487.28, less $70.39 paid him; that, on account of that fraud and mutual mistake, the settlement made should be vacated, and an accounting of the business and profits of the partnership be had, and the rights of the parties established; and that the court enter a decree dissolving the partnership and render a decree in favor of plaintiff for such sum as is found to be justly due him, and for general relief. The answer was a general denial. After the evidence was concluded, the court proceeded to render judgment, placing its finding in favor of defendants on the conclusion the court had arrived at, that there had been no fraud attempted or practiced on the plaintiff. Whereupon plaintiff's counsel asked leave to amend by striking out the allegation of fraud and to stand on the allegations of error and mutual mistake. The court permitted this to be done, and, taking the case under advisement, dismissed the case, finding for the defendants. Whereupon plaintiff appealed, having filed a motion for new trial, which was overruled; plaintiff duly saving exceptions.

It appears from the evidence in the case that plaintiff and defendants had formed a partnership to carry on the business of grocers, in St. Louis. After the partnership had existed for about a year, it appears to have been agreed that it should be dissolved and a division made of the firm assets. A paper to that effect was drawn up in Italian by one of the defendants; all the parties being of that nationality. This paper was introduced in evidence by plaintiff, which, translated, is as follows: "The division will be made on the basis of the inventory, whether from the inventory there should be a gain or loss. The gain or loss will be divided among the partners in equal parts." It does not appear that this paper was signed by anybody, and the averment in the petition as amended is that the partnership itself was a verbal one; no written articles appearing ever to have been drawn up. Acting under this understanding or agreement, the defendants and plaintiff, with a Mr. Nasse, who had been requested by the defendant Lume to act as a sort of appraiser in the matter, met and proceeded to take and make an inventory and appraisement of the goods, accounts, credits, and debits, with a view of arriving at a basis for a dissolution. There was some evidence to the effect that plaintiff had offered to sell out his interest to one or both of the defendants, asking in the neighborhood of $300 for his interest. The inventory and appraisement were made by, or in the presence of, three men and the plaintiff; so far as we can gather from the record, the three partners being present, plaintiff acting for himself, and Mr. Nasse acting for the other two. Several days were consumed in making up this statement and reducing it to writing, and on its completion the partners and Mr. Nasse meeting, the latter stated to the plaintiff, according to the latter, that there was $70 coming to him. While Mr. Nasse was making the calculations from which he arrived at this result, plaintiff was sitting by him. According to Mr. Nasse's testimony, he went over the ledger with the plaintiff, added the outstanding accounts to the inventory, and, after they got through that, took the liabilities and deducted that from the former figure, then put down the three accounts in rotation, and took off what each man had drawn. Quoting Mr. Nasse: "The business showed a profit of so much, and Mr. Dalpine was sitting there, and I here (indicating), and the other two were standing on the other side, and after we had got the figures down we both added them, and I said, `There is some 60 odd dollars that is coming to you, Mr. Dalpine.' I think that was the amount. I know it was not a hundred dollars, and we didn't examine the figures again. We just had them on yellow sheets of paper, and after we had this balance Mr. Dalpine said, `Give me $100 and I will walk out, and I told Mr. Lume that that would be the best way to settle it, and he said, `You pay him $100,' and I told him I would do so, and they then wrote up the dissolution of partnership, and Mr. Dalpine then wrote out a receipt. This receipt reads: `Received of Mr. Lume $100 in full of account in law and equity.'" This witness...