Fish v. Lightner

• Decision Date: 31 July 1869
• Citation: 44 Mo. 268
• Parties: BENJAMIN FISH, Defendant in Error, v. ADALINE LIGHTNER et al., Plaintiffs in Error.
• Court: Missouri Supreme Court

44 Mo. 268

BENJAMIN FISH, Defendant in Error,

v.ADALINE LIGHTNER et al., Plaintiffs in Error.

Supreme Court of Missouri.

July Term, 1869.

Error to First District Court.

Hicks, for plaintiffs in error.

H. C. Wallace, and J. J. Ryland & Son, for defendant in error.

CURRIER, Judge, delivered the opinion of the court.

This is a chancery proceeding to enforce the specific execution of a clause in a copartnership contract contemplating the conveyance of real estate on certain specified conditions. The party thus contracting to convey having deceased, his administrator, widow, and two minor children are joined in the suit as defendants. The premises in question were acquired by the deceased with a view to their use by the firm of Lightner & Fish in carrying on the livery business in Lexington, Mo., where said premises are situated. The firm was composed of the plaintiff and said deceased, the former being the active manager of the business. It was provided in their articles of copartnership that whenever “said Fish should have paid to the said Lightner one-half of the purchase money of said property--to-wit: one-half of seventy-five hundred dollars--with ten per cent. interest thereon from March 15, 1860, until the whole is paid, and should pay one-half of the expenses of said business, and should pay for one-half of all stock and provender necessary to carry on said business,” that then said Lightner should convey to Fish one undivided half of said property. The articles of copartnership bear date March 15, 1860. Lightner died July 30, 1861. The petition avers that, prior to his death, the plaintiff had paid him one-half of said purchase money and interest, together with one-half of all the costs, charges, and expenses incident to said livery business, and that the plaintiff had performed all the conditions and stipulations of said contract obligatory upon him. The answer filed put in issue the truth of these averments. If the evidence sustains the allegations of the petition, then the relief prayed for ought to be granted; otherwise not.

The plaintiff, as surviving partner, administered upon the firm assets, and wound up the affairs of the partnership. In support of the allegations of payment, the plaintiff offered in evidence the record of proceedings of the Lafayette Probate Court on the occasion of the final settlement by the court of the plaintiff's administration account. The transcript was admitted over the defendant's objections. It shows a final settlement of the plaintiff's administration account, and an ultimate balance in his favor of $1,058.22. This, it is insisted, conclusively establishes the fact of payment as alleged in the petition; and it is undoubtedly conclusive upon all matters which were legitimately before the court and directly in issue, and which the court specifically passed upon. But was the issue raised by these pleadings before that court? Did it undertake to adjudicate the question whether Fish, prior to the death of Lightner, had paid the $3,750 and interest, so as to entitle him to a conveyance? Was it within the scope and purpose of that accounting to settle questions of this character? If not, then the question was not concluded by that settlement; for the adjudication was conclusive only for the purposes for which it was made. It did not conclude matters collaterally introduced or recited; nor did it establish the fact that any particular firm-creditor was paid, because the accounts may have contained an entry to that effect, and the court may have made an allowance to the administrator accordingly. Many things may be introduced into an administration account which do not necessarily become res adjudicata in consequence of the judgment of the court thereon. (1 Greenl. Ev. § 528; Redf. on Wills, part II, pp. 894-5; Sparhawk v. Buel, 9 Verm. 41.) We do not consider the question litigated here to have been so involved and in issue in the proceedings before the Lafayette Probate Court, in the settlement of...