Gates Rubber Co. v. Williford
| Decision Date | 03 November 1975 |
| Docket Number | No. KCD,KCD |
| Citation | 530 S.W.2d 11 |
| Parties | The GATES RUBBER COMPANY, a corporation, Appellant, v. Price B. WILLIFORD et al., Respondents. 26970. |
| Court | Missouri Court of Appeals |
Thomas A. Schwindt, Berman, DeLeve, Kuchan & Chapman, Kansas City, for appellant.
Michael J. Albano, Graham, Paden, Welch, Martin & Tittle, Independence, for respondents.
Before SWOFFORD, P.J., and WELBORN and HIGGINS, Special Judges.
On November 7, 1969, The Gates Rubber Company, a corporation, obtained a judgment in the Jackson County Circuit Court against Samuel H. Deese for $3,987.31. Pursuant to the application of Gates, the circuit court issued an order charging the interest of Deese, if any, in a partnership consisting of Deese, Price Williford, Duren Sleyster and Mark Deese, with the payment of the judgment. A special execution issued, pursuant to which Samuel Deese's interest in the partnership was sold at public sale to Gates for $500.00. Gates thereafter brought this action against Williford, Williford's wife, Sleyster, Sleyster's wife and Mark Deese. By Count I of the action, Gates sought a dissolution of the partnership, an accounting as to the partnership profits, losses and affairs and for a proper distribution of the net assets of the partnership. Count II sought to quiet title in the partnership to real estate, alleged to have been acquired with the funds of the partnership, title to which was held by Williford and Sleyster. By their answer, defendants alleged that Williford, prior to the sheriff's sale, had acquired the interest of Deese in the partnership and that 'there is no interest with which the petition herein is applicable.' At a trial of the cause, the court sustained defendants' motion to dismiss plaintiff's cause of action at the close of plaintiff's case. This appeal followed.
In February, 1963, Samuel H. Deese, Mark E. Deese, Price B. Williford and Duren N. Sleyster entered into an oral partnership to engage in the business of manufacturing and selling furniture. The partnership name was 'Diversified Activities.' The business operated under the name 'Bishop Furniture Company,' at a building at 1341 Knox, North Kansas City, Missouri. The partnership arrangement was for a 25% interest in each partner.
The real estate described in Count II of plaintiff's petition was the property at 1341 Knox. It was conveyed by the Small Business Administration to Williford and Sleyster on or about December 27, 1963. Williford advanced a portion of the money for the down payment of the purchase price, but was reimbursed by the partnership. The partnership provided the balance of the down payment. The balance of the purchase price was borrowed from the Raytown Bank and Williford and Sleyster and their wives executed a deed of trust on the property to secure the indebtedness. Payments on the note through March 11, 1969 were made by the partnership. The land and building were shown as an asset on the books of the partnership until at least February 28, 1969. In answer to interrogatories, in connection with this case, Williford and Sleyster asserted ownership of a 25% interest in the property.
The partnership operated at a profit in 1967 of $36,800.01, shared equally among the four partners according to the partnership's federal income tax return. The next two years were less successful, with a los of $78,532.06 for the year ending December 31, 1968, and a loss of $79,588.72 for the following year, again equally apportioned among the four partners. Sometime during 1969, the inventory of the Bishop Furniture Company was sold. The record is silent as to subsequent activity of the partnership.
On November 7, 1969, appellant, The Gates Rubber Company, obtained a judgment in the Jackson County Circuit Court against Samuel H. Deese for $3,987.31.
On January 16, 1970, appellant, pursuant to § 358.280, RSMo 1969, filed an application for an order charging the interest of Samuel H. Deese in the partnership with the payment of the judgment debt. An order was issued directed to Deese, Williford, Sleyster and Mark Deese, calling upon them to answer Gate's application and show cause why an order should not be issued charging the interest of Deese.
A hearing was held on February 6, 1970, at which the four partners were represented by attorneys. The court found the existence of the unpaid judgment debt and further found 'that the said Samuel H. Deese is a partner in the firm of Diversified Activities, d/b/a Bishop Furniture Company, a partnership consisting of Samuel H. Deese, Price Williford, Duren Sleyster, and Mark Deese, with place of business at 1345 Knox in North Kansas City, Missouri.'
The order continued:
'IT IS THEREFORE ORDERED that the interest of said Samuel H. Deese, if any, in the said partnership of Samuel H. Deese, Price Williford, Duren Sleyster and Mark Deese, known as Diversified Activities, and doing business under the name of Bishop Furniture Company, is hereby charged with the payment of said sum of $3,987.31, the unsatisfied amount of said judgment debt, together with the interest thereon and with the costs of collection of said unsatisfied judgment debt and interest thereon; * * *.'
A special execution was issued, ordering the sale of Deese's interest in the partnership to satisfy the judgment. On April 20, 1971, the sheriff, at public vendue, sold the interest of Deese to appellant for $500.00. A Sheriff's Bill of Sale issued and the court confirmed the sale on May 19, 1971.
The petition in this case was filed May 26, 1971. It alleged the existence of the partnership and generally the matters above recited. It further alleged that since on or before April 9, 1970, the partnership had not engaged in the business of manufacturing and selling furniture, but that no steps had been taken to liquidate the partnership. It alleged the ownership by the partnership of the building at 1341 Know and that Williford and Sleyster were receiving rent and profits therefrom without accounting therefor to plaintiff. Count II related to the ownership of the real property. By their answer, defendants alleged that plaintiff...
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