Glaus v. Gosche
| Decision Date | 20 June 1938 |
| Docket Number | No. 24130.,24130. |
| Citation | 118 S.W.2d 42 |
| Court | Missouri Court of Appeals |
| Parties | GLAUS v. GOSCHE et al. |
Appeal from Court of Common Pleas, Cape Girardeau County; L. L. Bowman, Judge.
"Not to be published in State Reports."
Action by Philomena Schwartz Glaus against Peter Gosche and others, copartners and doing business under the firm name and style of Chaffee Mill & Grain Company, and others, on a promissory note. Judgment for plaintiff, and defendants appeal.
Affirmed.
Ray B. Lucas, of Benton, for appellants.
Stephen Barton, of Benton, for respondent.
This is a suit on a promissory note which was begun in the circuit court of Scott County, on February 23, 1934, and thereafter was removed by an order granting a change of venue to the Cape Girardeau Court of Common Pleas in Cape Girardeau County.
The note reads as follows:
The following named individuals are also makers of the note: M. E. Gisi, Theo. Diebold, Tony Gosche, J. D. Allison, Wm. Pfefferkorn, Leo Dumey, Frank M. Amrhein, L. J. Bechel, D. E. Rigdon, John Kielhofner, Peter Gosche, F. X. Schwartz, Peter A. Rigdon, Leo Grojean, J. F. Schetter.
Following are credits entered on back of note:
"Mar. 9, 1925, Paid on Note as Interest
Mar. 10, 1927, " " " $84.00
Mar. 15, 1928, " " " 84.00
Mar. 11, 1929, " " " 84.00
Mar. 15, 1930, " " " 84.00
Sept. 10, 1931, " " " 600.00 Prin."
The petition set out in substance that the individuals who signed the note were members of a partnership known as the Chaffee Mill & Grain Company; that said partnership also signed the note and that the same was delivered to Albert Schwartz (the original payee) "for money borrowed from him by said Chaffee Mill & Grain Company" and the individual defendants; that since the execution of the note Peter A. Rigdon and Leo Grojean had died, and M. E. Gisi and Albert Schwartz have been adjudged bankrupts; that Albert Schwartz had sold and transferred the note to plaintiff for value and that she therefore became the owner thereof. Then, after setting out the various payments, plaintiff prayed judgment.
The answer contained in substance the following: An admission that the individual defendants were co-partners under the firm name of Chaffee Mill & Grain Company; an admission of the death of Peter A. Rigdon and Leo Grojean and the adjudication in bankruptcy of M. E. Gisi and Albert Schwartz; an allegation that the partnership mentioned was still in existence and that there had been no dissolution or winding up of its affairs; that the partnership was heavily indebted and involved; that the individual partners had been compelled to pay large sums of money for the co-partnership and that they had never had an accounting among themselves and that there were unequal payments made by different members of the firm on the firm debts; that Albert Schwartz was a member of said partnership at all times and that he did not sell the note to plaintiff until about the year 1930; that at the time he endorsed the note to plaintiff he was indebted to the co-partnership and to the co-partners and had not paid his proportionate part of the debts of said firm and other co-partners had paid more debts of said firm than had Albert Schwartz and that at the time he endorsed the note to plaintiff the defendants did not owe any of the note; that the money advanced by Albert Schwartz at the time he took the note sued on, was for partnership purposes and used as such; that the plaintiff is a sister of Albert Schwartz and knew the condition of the co-partnership and knew that none of the defendants owed anything on the note; that the plaintiff is not a holder in due course, having taken the note long after maturity, and that Albert Schwartz soon after she acquired the note became a bankrupt; that the partnership, Chaffee Mill & Grain Company, has outstanding debts approximating $20,000 and that Albert Schwartz prior to bankruptcy was indebted to the defendants in a much larger sum than the balance due on the note and that an accounting and winding up of the co-partnership would disclose that the note sued on would be of no value and that plaintiff is not entitled to sue on the note; that Albert Schwartz could not loan money to a co-partnership of which he was a member and that he could not bring a suit on said note against a co-partnership of which he was a member; that said note is invalid, uncollectible and plaintiff acquired the said note long after it was due with full knowledge of the surrounding facts, and that she cannot maintain a suit thereon and that on account of the long period of time and the nature of the business, and, for an adjustment of accounts existing between the co-partners, it would require the appointment of a referee to hear and determine the case, and they prayed for such appointment of referee.
The reply in substance contained the following: A general denial; the allegation that plaintiff purchased the note for value without any knowledge of the internal conditions of the partnership; that Albert Schwartz shortly before he sold the note to plaintiff was in need of some money for use in a land deal; that he proposed to sell the note to plaintiff, and such proposed sale was agreeable to, and concurred in by the defendants; that he did sell and endorse the note to plaintiff, and defendants knew of such sale, and did not advise plaintiff of their claim of not being liable on the note; that the defendants held out to the public that Albert Schwartz had authority to negotiate said note; that defendants paid plaintiff the interest annually when due and that she had no knowledge of any of the facts set up in the answer in respect to the note at the time she purchased same; that an assessment of $600 was made in 1930 after she became the owner of the note and that Albert Schwartz for his proportionate part of the money to be raised in the partnership business, arranged with plaintiff to pay the assessment by allowing $600 credit on the note sued on, but that she exacted a condition from him, that he give his note to her for $600 securing it by a chattel mortgage and when that was done she allowed the credit of $600 to be entered on the note as payment of that much of the principal; that defendants had full knowledge of this procedure and sanctioned it and that they are individually estopped to deny liability to plaintiff on the note sued on; that she purchased and became the...
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...... counterclaim which wholly defeats plaintiff's demand is. not allowable. Jones v. Moore, 42 Mo. 413;. Hauser v. Burge, 121 S.W.2d 314; Glaus v. Gosche, 118 S.W.2d 42. (7) A final judgment should. dispose of all issues. Hence the counterclaim was properly. dismissed. Wade v. Natl. Bank ......
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