Goodson v. Goodson

• Decision Date: 22 June 1897
• Parties: Goodson, Administratrix, Appellant, v. Goodson et al., Executors
• Court: Missouri Supreme Court

41 S.W. 737

140 Mo. 206

Goodson, Administratrix, Appellant, v. Goodson et al., Executors

Supreme Court of Missouri, Second Division

June 22, 1897

Appeal from Macon Circuit Court. -- Hon. Andrew Ellison, Judge.

Affirmed.

R. S Matthews and Ben Eli Guthrie for appellant.

(1) The common law right of the surviving partner to wind up the business of a partnership is still in force in Missouri. The surviving partner is not compelled to take letters of administration upon the partnership estate to wind it up neither is the administrator of the individual estate compelled to take letters of administration upon the partnership estate, but may permit the surviving partner without bond to wind up the business of the partnership as at common law and as in this case without prejudice to the rights of the estate of the deceased partner. Bredow v Mutual Savings Institution, 28 Mo. 186; Holman v. Nance, 84 Mo. 674; Crook v. Tull, 111 Mo. 288; Matney v. Gregg Bros., 19 Mo.App. 107. (2) After the assets of the partnership are administered and converted into money by the surviving partner, as in this case, the administratrix of the deceased partner has her right of action for amount due her and for an accounting. She has no other remedy and her right of recovery remains until it is barred by the statute of limitations. (3) Before an estoppel in pais can be pleaded or invoked, the following elements must actually or presumably be present and shown: First. There must have been a false representation or a concealment of material facts. Second. The representations must have been made with knowledge of the facts. Third. The party to whom they were made must have been ignorant of the truth of the matter. Fourth. They must have been made with the intention that the other party should act upon them. Fifth. The other party must have been induced to act upon them. These elements must enter into an estoppel in pais. Bigelow on Estoppel [3 Ed.], p. 484; Blodgett v. Perry, 97 Mo. 263; Spurlock v. Sproule, 72 Mo. 503. (4) This is not a suit based upon fraud, deceit, and misrepresentation, but is a suit for an accounting in the settlement of a partnership. (5) Estoppel in pais must be pleaded by answer setting out facts constituting estoppel. Bigelow on Estoppel [2 Ed.], p. 532, and cases cited.

Dysart & Mitchell and Bert D. Nortoni for respondents.

(1) The appellant had a complete and adequate remedy at law and the statute sets out with definiteness the method of procedure and her duty where her intestate is entitled to a portion of a partnership estate and the surviving partner or partners fail to give bond and administer as required by statute. R. S. 1889, secs. 57 to 63 inclusive. (2) The appellant is guilty of gross laches as is apparent upon the face of her petition. She can not wait until a legal remedy, in every way adequate for the adjusting of her claim, is passed -- such as is pointed out in the sections of the statute above quoted -- deliberately wait for two years and more until death has sealed the lips of the party against whom a disputed and refused claim is sought to be obtained, and then come in and ask a court of equity for relief. Equity demands the rigid enforcement of the rule of diligence in such cases. Hammond v. Hopkins, 143 U.S. 224; Felix v. Patrick, 145 U.S. 317; State ex rel. v. West, 68 Mo. 229; Lenox v. Harrison, 88 Mo. 496; Gatewood v. Bolton, 48 Mo. 78; Reel v. Ewing, 71 Mo. 17; Rice v. Martin, 8 F. 476. (3) In order to escape want of diligence and the rule of laches, the petition aims to charge fraud against John E. Goodson, Sr. The petition does not properly plead fraud. It nowhere sets out or pretends to set out what the fraudulent "representations, actions and conduct" of John E. Goodson were, nor is it anywhere stated when such were made. Reed v. Bott, 100 Mo. 62; Bliss on Code Plead. [2 Ed.], sec. 211; Smith v. Sims, 77 Mo. 269; McQuillin's Plead. and Prac., p. 321, sec. 322.

Burgess, J. Gantt, P. J., and Sherwood, J., concur.

OPINION

Burgess, J.

This was a bill filed in the circuit court of Macon county by plaintiff as administratrix of John Goodson, Jr., against defendants as executors of John E. Goodson, Sr., for an accounting and settlement of the partnership alleged to have existed between said John E. Goodson, Sr., and John E. Goodson, Jr., in the publication of a newspaper called The Messenger of Peace.

The petition, leaving off the formal parts, is as follows:

"Plaintiff for cause of action states that John E. Goodson, Jr., and John E. Goodson, Sr., on or about the day of November, 1878 formed a copartnership for the purpose of carrying on the business of editing and publishing a semi-monthly newspaper in the interest of the Baptist church, called The Messenger of Peace, published and printed at Macon, Missouri; that the conditions of said partnership were that each member should give his time and attention to the business of said partnership, and that each partner should bear the expenses equally of said partnership and share equally the profits of the same, or, in other words, were equal partners in said partnership business of editing and publishing said newspaper. That the said copartnership business was entered upon pursuant to said agreement and continued to the time of the death of the said John E. Goodson, Jr., which occurred on the nineteenth day of August, 1890, at Macon county, Missouri. That at the time of the death of the said John E. Goodson, Jr., there was on hand partnership property purchased with partnership earnings and belongings to said partners and partnership, a large amount of personal property, consisting of office furniture of the value of $ 100, blank paper of the value of $ 150, type, galleys, mailing appliances and such other materials as is used in printing a paper, all of the value of $ 200. That at the time of the death of the said John E. Goodson, Jr., there were upon the books of the firm of said partnership subscription accounts for said newspaper, past due from various parties unknown to this plaintiff, to the amount of $ 4,000 or more, of which amount $ 2,000 or more were solvent and collectible; that at the time of the death of the said John E. Goodson, Jr., he was the owner of the one half interest in all the personal property, accounts, and effects aforesaid belonging to said firm or copartnership. That at the time of the death of the said John E. Goodson, Jr., the aforesaid newspaper had a large circulation of near three thousand copies at the price and sum of $ 1.50 per copy, which yielded to the publishers a large profit; that the subscription list and good will of said paper at the time of the death of John E. Goodson, Jr., was valuable and worth $ 1,000 or more. That as aforesaid, on the nineteenth day of August, 1890, the said John E. Goodson, Jr., died intestate at Macon county, Missouri, and that on the day of , 1890, letters of administration upon the estate of the said John E. Goodson, Jr., deceased, were issued and granted to this plaintiff by the probate court of Macon county, Missouri, appointing this plaintiff administratrix of all the goods, chattels, and credits which were of said deceased, and that this plaintiff thereupon duly qualified as such administratrix and entered upon the discharge of the duties of her said office, and is now acting as such administratrix.

"The plaintiff further states that immediately after the death of John E. Goodson, Jr., John E. Goodson, Sr., as surviving partner, took complete control of the aforesaid partnership property, accounts, and effects and proceeded at once to collect the outstanding accounts and to sell the property aforesaid belonging to said partnership firm, and did sell all the partnership effects and collect the accounts aforesaid and dispose of said paper, its good will and subscription lists, and in all things did wind up said partnership estate without taking letters upon the same from the probate court, or giving bond as such surviving partner. That the said John E. Goodson, Sr., in his lifetime, after he had sold said partnership property and disposed of said newspaper and its subscription lists and collected the outstanding accounts of said firm, wholly neglected and refused to pay this plaintiff as administratrix of the estate of John E. Goodson, Jr., the half or any other part of the money and assets arising from said partnership estate which was fully administered and assets all converted into money in the lifetime of John E. Goodson, Sr., and by him. And plaintiff further alleges that said John E. Goodson, Sr., has at all times failed to make and state any account of the property belonging to said partnership, and of his administration of the same, but has by every means and from time to time put off and delayed the claim, and has fraudulently concealed from plaintiff his intention and purpose not to settle said partnership matters with her, as administratrix of the said John E. Goodson, Jr., and that when the said John E. Goodson, Sr., learned that plaintiff intended to proceed at law and equity to make him account for all of said property and settle said partnership with her the said John E. Goodson, Sr., then and there by his representations, actions, and conduct fraudulently induced plaintiff to believe that he fully intended to settle the same and to make the estate of the said John E. Goodson, Jr., full reparation and recompense for all the property of said estate in and to said partnership, and that plaintiff fully relying upon the said representations and conduct and actions of said John E. Goodson, Sr., in the premises delayed from time to time and waited upon the said Goodson to make said settlement and turn over to the said estate whatever was due it from...