Filbrun v. Ivers

• Decision Date: 06 June 1887
• Citation: 4 S.W. 674,92 Mo. 388
• Parties: Filbrun, Appellant, v. Ivers
• Court: Missouri Supreme Court

4 S.W. 674

92 Mo. 388

Filbrun, Appellant, v. Ivers

Supreme Court of Missouri

June 6, 1887

Appeal from Cape Girardeau Circuit Court. -- Hon J. D. Foster Judge.

Reversed and remanded.

R. L Wilson and Oliver & Limbaugh for appellant.

(1) The relations of plaintiff and the defendant to each other being that of partners, the utmost good faith was required of them in all business transactions pertaining to the partnership each was trustee for the other in the management of the partnership affairs. 1 Story's Eq. Jur. [8 Ed.] secs 321, 322, 323; Story on Part. [5 Ed.] secs. 174, 348; Jamison v. Glasscock, 29 Mo. 191; Pomeroy v. Benton, 57 Mo. 531. And this relation of trust is not terminated by a dissolution, but continues till a final adjustment of the partnership affairs. Story on Part. [5 Ed.] secs. 325, 331, and cases cited, and 348; 1 Story's Eq. Jur. [8 Ed.] secs. 315, 316, 316a. (2) It was the duty of the referee, in stating the account, to charge each partner with all amounts by him collected, on account of the partnership, subsequent to the retirement of Filbrun from the firm. Story on Part. [5 Ed.] sec. 348. It was the duty of the referee, in stating the account, to charge Ivers with the amount of the freight bills collected by him. (3) The judgment rendered herein is not responsive to the issues in this suit. This is an action in equity to settle the partnership accounts and transactions of plaintiff and defendant. It was the duty of the court to make a final disposition of all the issues arising herein, and upon its approval of the report of the referee, to so dispose of all the assets of the firm as to make a complete and final settlement between plaintiff and defendant. Hodges v. Black, 76 Mo. 537; Story on Part. [5 Ed.] sec. 347, and note 1, p. 551. When a court of equity once obtains jurisdiction of a cause, it will retain the same to do full and complete justice between both the parties. Corby v. Bean, 44 Mo. 373. By overruling the objections of plaintiff to the referee's report, the court approved thereof. Pomeroy v. Benton, 77 Mo. 65. (4) In this case the referee has reported to the court all the evidence upon which his report is made. When this is done this court will review and correct his finding. Ely v. Ownby, 59 Mo. 437; Shore v. Coons, 24 Mo. 556; Perry v. McGuire, 31 Mo. 287. There was no evidence to support the finding, and this court will reverse if the finding is against the law. Moore v. Hutchinson, 69 Mo. 429.

Lewis Brown for respondent.

OPINION

Ray, J.

This action was brought to settle the mercantile partnership entered into between plaintiff and defendant in 1863, under the name and style of Filbrun & Ivers, and continued until July, 1880, when the same was dissolved. Plaintiff, Filbrun, at this date went out, leaving defendant, Ivers, in possession and control of the store, goods, notes, book accounts, etc. There was no adjustment of the accounts of said firm, or of the individual accounts of plaintiff and defendant with said firm at the time of said dissolution. Defendant, Ivers, continued, from said July, 1880, to carry on the business until May, 1882, when this suit was begun, and a receiver appointed, who, thereupon, took possession of the partnership stock. After the pleadings were made up in said cause a referee was appointed, by order of the court, to state the account between said parties. The report of the referee filed in the cause was as follows:

"I find from the books of the late firm and evidence as follows:

RESOURCES.

Due them on personal accounts, per petty ledger

$ 1,144 37

Due them on personal accounts, per general ledger

2,089 76

Bonds, notes and stock on hand

5,017 99

Freight bills due by sundry persons

61 55

Proceeds from sale of property reported by receiver

969 88

Due from John Ivers on open account

9,079 05

Due by John H. Filbrun on open account

6,504 43

Total

$ 24,907 03

LIABILITIES.

Due John Ivers amount account paid Cape County Mills

$ 144 15

Due John Ivers for amount due on a promissory note for

4,689 75

$ 4,000, dated January 9, 1880, payable to the order of

Henry Kiel, signed by the president and treasurer of the

Union Mill Co., indorsed by Filbrun & Ivers

$ 4,833 90

Total resources

$ 20,073 13."

Objections and exceptions thereto were filed by plaintiff, which were overruled by the court, and judgment based on said report was given for defendant in the sum of $ 1,149.20, from which plaintiff has appealed.

In the said report of the referee, it will be perceived defendant, Ivers, is given credit for $ 4,689.75, the full amount of principal and interest then due on the Kiel note, and the principal exception to the report and judgment entered thereon, is in respect to this credit. As to this note the facts seem to be about as follows: Said firm of Filbrun & Ivers was, with other parties, interested in the Union Mill Company, a company engaged in the manufacture and sale of flour. Said Filbrun, it seems, was the president, and said Ivers secretary, of said mill company. In January, 1880, said mill company, by its said president and secretary, executed the following note, which is the one referred to in the cause:

"$ 4,000.00. Cape Girardeau, Mo., Jan. 9, 1880

"Six months after date, we promise to pay to the order of Henry Kiel, four thousand dollars for value received, negotiable and payable without defalcation or discount, with interest from date at the rate of ten per cent. per annum.

'[Signed.] John H. Filbrun,

"Pres. Mo. Union Mill Co.

"John Ivers, Secretary."

Said note was endorsed by the said firm of Filbrun & Ivers, and, after the dissolution of the partnership, and before this suit was brought, said Ivers purchased said note from Meystedt, the owner and holder thereof, and, as we have said, the referee, in his report, gives said Ivers a credit therefor, in the amount of the face value and the accrued interest.

The relations of plaintiff and defendant being that of partners, their rights and duties, as between themselves, are to be governed by the rules applicable to trustees and agents, and the trust relation, which exists between them, is not terminated with the dissolution, but continues until a final adjustment and settlement of the partnership affairs is had. Story on Part. [5 Ed.] secs. 174, 348; Pomeroy v. Benton, 57 Mo. 531.

Application of these rules and principles would entitle defendant, Ivers to a credit only in the amount actually paid by him for the said note. In this behalf, the testimony of Ivers was, in substance, that he paid Meystedt, the holder and owner of the note, two hundred and fifty dollars in cash, and certain commissions on sales of meat which he made for Meystedt, between the months of October, 1880, and April, 1881. The usual charge for such commission, as he testifies, was two and one-half per cent. for buying, and the same for selling. He testified that he bought more than ten thousand dollars' worth of meats for Meystedt, but would not testify that the amount so purchased was as much as fifteen thousand dollars. So that, in any...