Ely v. Coontz

• Decision Date: 11 March 1902
• Citation: 167 Mo. 371,67 S.W. 299
• Parties: ELY v. COONTZ et al.
• Court: Missouri Supreme Court

67 S.W. 299

167 Mo. 371

ELY v. COONTZ et al.

Supreme Court of Missouri, Division No. 2.

March 11, 1902.

EQUITY—RIGHT TO JURY—PARTNERSHIP—ACCOUNTING —EVIDENCE—SUFFICIENCY.

1. Where, on a bill for settlement and accounting of partnership affairs, the answer alleged a settlement, the chancellor might, in his discretion, refuse to submit the issue to a jury.

2. A partnership to which plaintiff belonged had ceased to be a going concern for two years, and had sold its plant and assets, except some notes shown to be of no value. Plaintiff received a letter from defendant partners, asking him to attend a meeting for settlement, and he did attend, and three of the four other partners were present; the fourth being admittedly insolvent. The three defendant partners testified that it was understood to be a final settlement; that all were requested to present any claims they might have; that claims were presented, and the assets were applied toward payment, and the balance paid by the partners. Plaintiff testified that the meeting was like prior meetings, merely to pay off indebtedness, and was not final. Held, in an action for accounting, that the evidence justified a finding that there had been a final settlement.

Appeal from circuit court, Audrain county; E. M. Hughes, Judge.

Bill by S. D. Ely against J. F. Coontz and others. From a decree for defendants, plaintiff appeals. Affirmed.

W. W. Botts and Edmonston & Cullen, for appellant. Geo. Robertson, for respondents.

GANTT, J.

At the September term, 1897, plaintiff brought his suit in equity for a settlement and an accounting of the partnership affairs of the Vandalia Fire Brick Company, a firm composed of the plaintiff, S. D. Ely, and the defendants, C. G. Daniel, H. T. Davis, J. F. Coontz, and G. H. Utterback, and engaged in the business of manufacturing fire and other brick, drain tile, and mining coal at Vandalia, in Audrain county. This partnership, it was alleged, was formed October 24, 1890. The petition avers: That said firm entered into a contract with one Stuewe to carry on said business, and that arrangement with Stuewe continued until 1892, when it was dissolved. That thereupon plaintiff and defendants carried on said business until July, 1893, when said firm retired from business. That in the course of their business said firm expended large sums of money for labor and machinery, and sold large quantities of said material, and shipped large quantities of coal, and used the plant of the Audrain Manufacturing & Coal Mining Company, a corporation of which said partners were the officers and stockholders, and used and appropriated certain funds belonging to said corporation. That said firm is indebted to said corporation for the use and occupation of its said plant. That at the time said firm retired from business there was on hand a large quantity of manufactured goods undisposed of, the amount of which is unknown to plaintiff. That the books showing the same are in the hands of defendants. That there were on hand also certain promissory notes, to wit: Two against said Stuewe, one for $2,000, the other for $2,055.20, both of date February 1, 1892; one on C. Dixon, of February 11, 1893, for $1,344.30; one of January 20, 1894, for $520, and another for $6,580, of February 24, 1894,—all bearing interest at 8 per cent. per annum; and one on E. G. Bucklin for $75 and various book accounts. That advancements had been made to said firm by its members from time to time, stating the amount each partner had advanced. It was then alleged that no settlement had been made. Prayer was for an accounting and adjustment of said firm liabilities, and for a dissolution, and for all proper decrees, etc.

The joint answer of defendants was as follows: "Now come all the defendants herein, and for their joint answer say that it is a fact that all of the partners hereto at one time were engaged in business as partners, and say that at one time they purchased the interests of the Audrain Manufacturing & Mining Company; that said Ely owned the larger part of said interest in said company, and said company had a settlement with said partnership, which was agreed upon and satisfactory to said Ely and all parties concerned; that said partnership continued in business until July, 1893, when it sold out and transferred all of its assets to the Vandalia Coal Company, and afterwards, March 7, 1895, all of said partners except said Davis got together and had a complete settlement of said business; that for a long time prior to said sale and settlement said Davis had been dropped from said partnership by the mutual consent of all the parties concerned. Defendants say that there are no assets of said partnership, except the notes described in plaintiff's petition, which are insolvent, and so regarded by all the parties hereto, and were so regarded in said final settlement aforesaid. Defendants deny that said plaintiff was cheated or wronged in any way in any of said transactions, but on the other hand was the business manager of said partnership, and knew well that in said final settlement everything was accorded to him to which he was entitled; and, except as herein admitted, defendants deny each and every allegation of plaintiff's petition, and, having fully answered, ask to be discharged, with their costs."

To this plaintiff replied as follows: "Now comes the plaintiff herein, and for reply to defendants' answer says that he denies that the partnership transferred all its assets to the Vandalia Coal Company; denies that the defendant Davis was ever dropped from said partnership by mutual consent by all parties concerned; denies that the members of said partnership, or any of them, ever met and had a complete settlement of said business; denies that the notes described in plaintiff's petition are insolvent; denies that they are so regarded by the parties, either now or at the time the alleged final settlement was made; denies each and every other allegation of new matter in said answer contained; and, having fully replied, prays for the relief asked for in his original bill."

When the cause was called for trial the parties announced themselves ready for trial upon the issue of settlement of the partnership affairs as averred in the answer. Whereupon plaintiff requested a jury to try this issue, which the court declined to grant, and refused to call a jury, holding that, as this is an equity case, the parties have no right to demand a jury to try the issue herein, to which ruling plaintiff duly excepted at the time.

The abstract of plaintiff is exceedingly unsatisfactory, omitting, as it does, a statement of the settlement which was offered and read in evidence, and which the defendants testified was a final settlement of the partnership matters, and other material evidence. These have been supplied by the defendants in their abstract and by convenient references to the transcript on file. We cannot permit this negligent practice to pass without our disapproval. Our rules are clear and explicit as to the duty of appellants in preparing abstracts and briefs. It is not the duty of respondents to go to the expense and labor of abstracting the record, as they have done in this case, in order to advise this court of the points in dispute and the material matters in the record.

1. The first point advanced by plaintiff, that the court erred in denying him a jury, is clearly without merit. This is a suit in equity, in which a trial by jury did not exist at common law, and never has as a matter of right in this state; and though the chancellor may, in his discretion, submit certain issues in such a cause to a jury, he is not bound by their verdict. Gay v. Ihm, 69 Mo. 584; Snell v. Harrison, 83 Mo. 651. This constitutional guaranty of the right of trial by jury secures that right in the class of cases in which it existed as a matter of right before the adoption of the constitution. It does not extend it. Cooley, Const. Lim. 504, and cases there cited; Shepard v. Bank, 15 Mo. *150; Edwardson v. Garnhart, 56 Mo. 81; Ice Co. v. Tamm, 138 Mo. 385, 39 S. W. 791. In this case plaintiff seeks an accounting of the partnership affairs of the Vandalia Fire Brick Company, and the jurisdiction of courts of equity in such suits is exclusive, as are their remedies of dissolution and the adjustment of the firm affairs between the partners themselves. The court committed no error in denying a jury. Having jurisdiction of the case in equity, it had it for all purposes.

2. The issue was settlement or no settlement. On the part of defendants, C. G. Daniel, J. F. Coontz, G. H. Utterback (three of the defendants) testified that on the 7th day of March, 1895, Mr. Ely, the plaintiff, and themselves had a meeting in the rear office of the bank at Vandalia for the purpose of settling the entire business between them, not only of the Vandalia Fire Brick Company, but of the Audrain Manufacturing & Mining Company, and their individual differences growing out of those concerns as well. The witness Daniel produced a balance sheet, which the defendants read in evidence, and testified that it was the final adjustment of the affairs of both of those concerns, and that Mr. Ely was requested to present everything he had against them at that time. Ely had been the managing officer both of the corporation and of the firm which subsequently by mutual agreement had taken over the affairs of the corporation. Some time after they had suspended all active operations in 1893, Mr. Ely had removed to St. Louis, and they...