Henry v. Bassett
| Decision Date | 31 October 1881 |
| Citation | 75 Mo. 89 |
| Parties | HENRY, Appellant, v. BASSETT. |
| Court | Missouri Supreme Court |
Appeal from Bates Circuit Court.--HON. F. P. WRIGHT, Judge.
REVERSED.
A. Henry pro se.
E. J. Smith and P. H. Holcomb for respondent.
Plaintiff and defendant were jointly employed as attorneys at law by Mt. Pleasant township, in Bates county, to defend Bates county against certain suits instituted in the circuit court of the United States on bonds issued by said township to the Lexington, Lake & Gulf Railroad Company, and, by the agreement, were to receive as their compensation, $7,000, provided said suit should be successfully defended, and the bonds declared void by the Supreme Court of the United States. In one of the cases, Harshman v. Bates County, the said court did so decide, and thereupon Bassett applied to the township board of Mt. Pleasant township, and obtained an order for said $7,000, on executing a bond in the penalty of $14,000, to refund the money he might receive on said order, in the event that other cases, on other of said township bonds should be decided by the Supreme Court of the United States adversely to the township. The case of Harshman v. Bates County was subsequently overruled by the Supreme Court of the United States in the case of Winters et al. v. Bates County, which was a suit on a portion of said Mt. Pleasant township bonds, which, by this latter decision, were held valid. This suit was instituted by Henry to recover one-half of the amount of the fee received by said Bassett from said township. The answer set up the foregoing facts, and also that Henry had refused and failed to perform any service in said cases, and that Bassett in connection with Glover and Shepley, of St. Louis, whom he employed with the consent of all the parties and paid a fee of $2,000, attended to the cases to their final conclusion, and that Henry gave them no assistance whatever, but wholly failed and refused to do so. The plaintiff's replication denied the statements in the answer. None of the evidence was preserved by the bill of exceptions. All that appears here is, that each party introduced evidence tending to prove the issues on his part. After the evidence was closed, the court refused certain instructions, asked by plaintiff, and gave the jury instructions for defendant, and thereupon plaintiff took a non-suit with leave to move to set it aside, and a motion to that effect having been by the court overruled, plaintiff has appealed to this court.
Plaintiff and defendant were special or limited partners. Story on Part., § 75. In the absence of an agreement to the contrary, they were to share equally in the compensation. Story on Part., § 24. Neither, without an agreement to that effect, could charge the other for extra services. Bennett's Adm'r v. Russell's Adm'r, 34 Mo. 524; Cramer v. Brachman, 68 Mo. 310; Story on Part., § 182. In the transaction of the business they had engaged to attend to for Mt. Pleasant township, neither could do more than their joint agreement required. Nothing that either might do necessary to the defense of those suits, could be regarded as extra service. One might do less, but the other could not do more than his duty, and one partner has no remedy against one who does less than his duty, in transacting the business of the firm, but in a proceeding to dissolve the connection. In a partnership, however, limited to one transaction, in which the partners have become bound to a third party, to perform certain services, we know of no way for one of the partners to extricate himself. Neither of the partners can release the other from his obligation to such third party, nor is it competent for any court to relieve either of his liability to such third person, against his consent.
The first of plaintiff's refused instructions asked the court to instruct the jury, that if plaintiff and defendant contracted with said township to defend certain suits against Bates county, and the township agreed to pay them $7,000 when any case should be decided by a court of last resort, holding that said bonds were void, and that plaintiff and defendant executed to said township their joint bond for $14,000, to secure their compliance with their contract, and that in Harshman v. Bates County there was a decision rendered by the court of last resort, that said bonds were void, and that afterward defendant received said stipulated fee, the jury should deduct from said sum the money necessarily expended by defendant in attending and defending said suit, including fees paid other attorneys employed, etc., and find for plaintiff one-half of the balance. The second declared, that if plaintiff and defendant jointly contracted with said township, and gave their joint bond for $14,000 to perform their joint obligation, they should find that plaintiff and defendant were equally entitled to the net profits obtained on said contract. These instructions were properly refused. They wholly ignore the issue made by the pleadings in the allegation of the answer, denied by the replication, that plaintiff had refused to perform any service under the contract, and as the evidence on that issue is not preserved by the bill of exceptions, we are not prepared to say that error was or was not committed in refusing the instruction.
The simple neglect of one of the parties to perform service under the contract, would not amount to an abandonment of the contract by him. A refusal to perform service is of more significance. It might, under certain circumstances, amount to a dissolution of the partnership, as between the parties. The refusal of one partner to do his duty in a general partnership, would not dissolve the partnership, but in a partnership like this, limited to one transaction, we are not prepared to say that a refusal under no circumstances would have that effect. Here there is no evidence preserved, and we are left to grope in the dark on the subject, and cannot say that the court erred in refusing the instructions.
The plaintiff's fourth was to the effect, that plaintiff should not be charged with any fees, or costs incurred, in defending any other suit than those mentioned in the contract with Mt. Pleasant township. So far as appears in this record, the court properly refused the instruction. The contract with the township is not fully stated in the plaintiff's petition, nor does it appear in the bill of exceptions, and how...
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...who delivered the opinion of the court, expressly says: “And this lack in the instruction was not supplied by any others.” In Henry v. Basset, 75 Mo. 89, none of the instructions presented properly the issue of abandonment of the contract involved in that case. (2) It has been the uniform r......
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