Gibson v. Jenkins
| Decision Date | 01 December 1902 |
| Citation | 97 Mo. App. 27,70 S.W. 1076 |
| Parties | GIBSON et al. v. JENKINS. |
| Court | Missouri Court of Appeals |
2. The statute provides that exceptions to the report of a referee must be filed within 4 term days. Held, that where a report was filed on the day of adjournment, and defendant was given 30 days to file exceptions, and he filed them within 30 days, and before the first day of the next term, they were in time.
3. Where a reference is compulsory, the court has the right to reject the report of the referee and make its own finding.
4. An agreement to bid in property at execution sale, and hold it in trust for one who is insolvent, is void by statute.
5. Plaintiff sued to recover proceeds of property which it was alleged defendant had bid in at an execution sale on an agreement to hold it in trust for plaintiff. Held, that a general denial would not admit a defense that the agreement was void because of the plaintiff's insolvency.
6. In an action on an account, the court did not allow plaintiff interest on his account, or defendant interest on his items against plaintiff. There was judgment for plaintiff, whose judgment would have been larger, had interest been allowed both. Held, that defendant could not complain because he was not allowed interest.
On Rehearing.
7. Plaintiff sued to recover proceeds of property which it was alleged defendant had bid in at an execution sale on an agreement to hold it in trust for plaintiff. Defendant's plea was a general denial, but, on the cross-examination of plaintiff, he testified that the agreement was made to hinder his creditors, and the testimony was not objected to. Held that, under the plea, the defendant could not avail himself of the testimony on cross-examination.
Appeal from circuit court, Linn county; Jno. P. Butler, Judge.
Suit by R. L. Gibson and others against M. R. Jenkins. From the judgment, both parties appeal. Affirmed on defendant's appeal, and reversed on plaintiffs'.
A. W. Mullins and Harry K. West, for plaintiffs. Wilson & Clapp, for defendant.
The plaintiff's sue as partners. The original petition was filed May 5, 1898. The amended petition on which the cause was tried was filed at the December term of said court for the same year. The cause was referred to a referee, whose finding was duly reported to the court, to which exceptions were filed by both parties. From the action of the court upon said report, and the judgment in the case, both parties have appealed, filing a joint abstract of the case. Both petition and answer are quite lengthy, and to each is attached a long account. Many questions have been raised, which we will endeavor to examine.
Plaintiffs' amended petition is to the effect that at divers dates, beginning on the 2d day of October, and ending on the 1st day of January, 1894, they sold to defendant goods and merchandise, and did weighing on their scales for him, in value to the amount of $437.22; that about October 5, 1892, they presented this account, except what accrued afterwards, to the defendant for payment, said account amounting at that time to $419.32; that owing to the fact that both plaintiffs and defendant were embarrassed financially, caused by losses sustained by the burning of their property at Browning, Mo., on April 27, 1892, it was agreed between them that plaintiffs should borrow $225 from the Browning Savings Bank, and that defendant would sign the note to secure the loan of the bank, as security, which he would ultimately pay, and which, when paid by him, was to be applied as a credit upon plaintiffs' said account; that such note was given, and, after having been renewed, was finally paid by defendant on the 8th day of February, 1898, at which time, with accumulated interest, it amounted to $277.25; and that defendant is entitled to the credit of the amount so paid on said account. The second count is substantially as follows: That on April 27, 1892, plaintiffs owned at Browning, Mo., goods, wares, lumber, and implements to the amount in value of $21,500, which were set fire to and destroyed by Alva C. Ross at the instigation of one William P. Taylor; that defendant owned property of the value of $1,500, which was also destroyed at the same time by the same agency; that plaintiffs and defendant on or about October 10, 1892, entered into an agreement by the terms of which plaintiffs were to institute an action by attachment against said William P. Taylor to recover judgment for the loss they had sustained by said fire, and that in such action plaintiffs would bear one half of the costs and expenses incurred, and the defendant would bear the other half of the same; that the proceeds of the litigation were to be divided equally between plaintiffs and defendant; that the suit was instituted, and proper judgment obtained against said Taylor for $15,000; that execution upon said judgment was issued and levied upon certain real estate of said Taylor, which was sold, and bid in by defendant to be held in trust for plaintiffs and himself in pursuance of said agreement; that defendant has sold said land, and realized therefrom the sum of $2,250, and has collected by way of rent on said property $241, making the total amount received by defendant under said agreement the sum of $2,491, one-half of which belonged to plaintiffs; that the defendant has paid out for costs and expenses in said suit the sum of $967.88, while the plaintiffs have paid out in the same behalf $370.70, making defendant's expenses exceed plaintiffs' in the sum of $597, which, deducted from said amount recovered as aforesaid, leaves a balance of $1,893.90, of which one-half is due from defendant to the plaintiffs. A summary of the defendant's answer, relevant to the matter in dispute, is about as follows: A general denial and allegations that it is not true that he entered into the agreement to borrow the $225 from the Browning bank, as stated by plaintiffs; that at that time he was not indebted to plaintiffs, but that, on the contrary, they were indebted to him; that, at the time of said fire, plaintiffs owed the German-American Bank of Ft. Madison, with accrued interest, $285 on a note which was payable to himself, and which had been indorsed by him to said bank; that, plaintiffs failing to pay said bank, it sued both plaintiffs and defendant, and that the former, having money enough to pay a part only on said note, borrowed $225 from the Browning bank to pay the remainder, giving the $225 note mentioned in plaintiffs' petition, with this defendant as security; and that said note was renewed, and afterwards paid by defendant, at which time it amounted, with accrued interest, to $277.55. Defendant then further alleges that the claim in plaintiffs' account of date December 23, 1893, for $3 for pipe tongs, is fictitious, and that the claim dated July 17, 1893, for $10 for Champion steel cart, was not sold and delivered to him, but to the Jenkins Hayrake & Stacker Company. He claims next, by way of set-off, a note dated January 16, 1890, for $170, due in 12 months, with interest from maturity, which was signed by one of the plaintiffs, but which is averred to be the debt of both. He also sets up an account stated, of date the 14th day of March, 1892, for $170.90. There is another allegation in defendant's said answer, setting up a counterclaim against plaintiffs; but as it was disallowed, and no error assigned in that regard, it will not be inserted here.
The referee found as follows: That the items of merchandise charged to defendant in plaintiffs' petition, commencing October 2, 1890, and ending January 1, 1894, is sustained by the evidence, except item for Champion steel cart, of date July 17, 1893, and $3 for pipe tongs, dated December 23, 1893. Second. That defendant realized from property acquired in the litigation against Wm. P. Taylor the sum of $2,250. Third. That the $170 note set up by defendant was the individual note of R. L. Gibson, and it was not allowed. Fourth. That the note set out in the petition, and alleged to be the note of defendant, was the note of the plaintiffs, and that they be charged with it. Fifth. That the $50 order was due from plaintiffs to defendant, and the latter was given credit for the same. Sixth. That under the evidence the claim of defendant for money loaned to and paid out for the Jenkins Hayrake & Stacker Company was not a matter for adjudication in the case, and he so reported. He also found that defendant collected rents on the Taylor property in the sum of $182.75, and that the $170.96 set out in defendant's answer is due defendant, and credits defendant with it. The court overruled the exceptions to the report of the referee, set the same aside, examined the evidence, and made an independent and different finding. In this finding by the court, all plaintiffs' accounts except that for weighing were disallowed. The court gave the following reason for its finding and ruling: "The court further finds that plaintiffs' accounts for lumber and other articles sold and delivered to defendant by plaintiffs between the 2d day of October, 1890, and the 5th day of May, 1892, amounting to $418.62, and the weighing account beginning on the 27th day of December, 1892, and ending on July 1st, 1894, amounting to the sum of $5.60, did not arise out of the same contract, express or implied, and that the latter did not attach to and become a part of the lumber account, so as to save the bar of the statute of limitations."
The evidence was to the effect...
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