Gillham v. Kerone

• Citation: 45 Mo. 487
• Parties: JOHN GILLHAM, Respondent, v. HENRY B. KERONE, Appellant.
• Decision Date: 31 March 1870
• Court: Missouri Supreme Court

45 Mo. 487

JOHN GILLHAM, Respondent,

v.HENRY B. KERONE, Appellant.

Supreme Court of Missouri.

March Term, 1870.

Appeal from St. Louis Circuit Court.

Woerner & Kehr, for appellant.

I. The existence of the partnership and the rights of the parties under it can not be inquired into in an action at law by one of the partners against the creditor of his co-partner. (Collier on Part., § 298; id. 266, § 300; Smith's Merc. Law, 65.) Such evidence is secondary in its nature, and so unreliable that it ought for that reason alone to have been excluded.

II. The verdict was erroneous also for the reason that it refers the question of damages to the interest of defendant in the property replevied. If defendant had the right of possession at all, it was to the whole of it, and not to any fractional or undivided part; and if defendant was entitled to any damages, it was for the interference with this right of possession.

III. It was gross and palpable error to refuse the alternative judgment. (3 Blackst. Com. 396; 1 Bouv. Inst., § 676; 4 Bouv. Inst., §§ 357-9; Smith v. Williamson, 1 Har. & Johns. 147; Phillips v. Harris, 3 J. J. Marsh. 131-2; Smith v. Winston, 10 Mo. 299; Reed, Guardian, etc., v. Wilson & Garner, 13 Mo. 28; Wiley v. Maddox, 26 Mo. 77; Collins v. Hough, id. 149; Hohenthal v. Watson, 28 Mo. 360; Hansard v. Reed, 29 Mo. 472; Dilworth v. McKelvy, 30 Mo. 149; Baldwin v. Dillon, id. 429; Pope v. Jenkins, id. 528; Reeves v. Reeves, 33 Mo. 29; Fallon v. Manning, 35 Mo. 271; Frei v. Vogel, 40 Mo. 149 et seq.)

Ewing & Holliday, for respondent.

Where the plaintiff has an interest in the property seized, judgment should not be rendered in favor of the defendant for the return of the property or the payment of the entire value of the property, but the value of the interest of the defendant in the property should be assessed, and judgment should be rendered in favor of the defendant for the value so assessed, or the return of the property until such value be paid, at the option of the defendant. (Dilworth v. McKelvy, 30 Mo. 149; Fallon v. Manning, 35 Mo. 271; Frei v. Vogel, 40 Mo. 149.)CURRIER, Judge, delivered the opinion of the court.

This is a replevin suit brought by the plaintiff, as general owner, against the defendant, who claims a lien upon the replevied property, in virtue of an execution levy upon it in a proceeding against the plaintiff's co-partner. The property was turned over to the plaintiff under the usual order in such cases. The main question for consideration arose at the trial upon objections to a portion of the plaintiff's testimony. It appeared that the defendant was an acting constable, and that, as such, he levied an execution against the plaintiff's co-partner upon the replevied property. This property constituted a portion of the partnership assets of a firm which was composed of the plaintiff and the execution debtor. The plaintiff offered evidence tending to show that the capital of the firm was contributed by himself exclusively; that the firm business had not been prosperous, and that the execution debtor's interest in the firm assets was merely nominal and of no value. The evidence was admitted over the defendant's objection, and the question is thus raised whether it was competent for the plaintiff, under the issues in the case, to show the facts proposed to be given in evidence. It was objected that the evidence was irrelevant to these issues, and that it was admissible only in a chancery proceeding by or against one or both of the parties composing the firm.

The ground assumed by the defendant in reference to the admissibility of the testimony is not in harmony with the spirit and tendency of the prior decisions of this court. In Dilworth v. McKelvy, 30 Mo. 149, it was definitely settled, and upon very mature consideration, that in a replevin suit by the general owner against a party having only a special interest, which is the situation of the defendant in the present suit, the recovery by the special owner against the general owner must be limited to the amount of the special owner's particular interest. In the case at bar, the defendant's special interest is limited to and can be no greater than was the interest of the execution debtor in the partnership effects. From these premises it would seem to follow as a matter of necessity that there must be some method of ascertaining in the replevin suit itself the extent and value of the interest of the execution debtor in the firm assets. Dilworth v. McKelvy decides, without stating particularly the mode of proceeding, that in order to ascertain the true amount or value of the special owner's interest, it is competent, in the replevin proceedings, to state an account and settle the rights of the parties in a maritime general average. On this subject the court say: “It is not necessary, nor perhaps proper, that we should anticipate the action of the court on these questions in another trial; nor do we apprehend that there will be any serious difficulty in adjusting the rights of the parties on just principles. * * * An application of the principles upon which general average has been allowed in cases of sea-going vessels, would make the case proved upon the trial a proper one for contribution.” The case therefore decides that matters of general average are subject to investigation and adjustment in a replevin suit, notwithstanding the form of the issues and the provisions of the statute; and if a general average may be adjudicated in a replevin suit, why not also matters affecting the rights of the members of a commercial partnership, as they stand...