In re Partnership Estate of COGSWELL & CO.
| Decision Date | 01 April 1902 |
| Citation | 67 S.W. 744,93 Mo.App. 482 |
| Parties | In the Matter of the Partnership Estate of COGSWELL & CO.; Heirs of JOHN C. COGSWELL et al., Plaintiffs, Appellants, v. WILLIAM FREUDENAU, Surviving Partner, etc., Defendant, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Warwick Hough Judge.
AFFIRMED.
Judgment affirmed.
J. P Maginn for plaintiffs.
(1) The administrator of John C. Cogswell, although appointed and qualified subsequent to the judgment of the probate court when thus qualified became the owner of the asset, and was properly a party to the appeal, with the heirs of John C. Cogswell. R. S. sec. 278, p. 181. (2) Mr. Freudenau, having claimed the funds in the treasury at Washington as his individual property, and, being opposed before the treasury department by the heirs of John C. Cogswell, who claimed the fund was partnership estate of Cogswell & Company, conceded the truth of the heir's claim; solemnly swore to its truth in his application to the probate court of the city of St. Louis, for authority, as surviving partner, to administer the fund as partnership estate; presented his certified copy from that court of its authority to him as surviving partner to the department at Washington, received and receipted for the fund as such, deposited the fund in that capacity and drew it out on checks signed by him as such. He is, therefore, forever estopped from alleging that such fund was not partnership estate, and from attempting to assert a right thereto as his individual property as against the legal representatives of his deceased partner. State ex rel. v. Branch, 151 Mo. 639; 2 Pomeroy Eq. Jur., sec. 805; Anderson v. Walker, 49 S.W. 946; Bombeck v. Bombeck, 18 Mo.App. 34; Bigelow, Estoppel, 435, 576; Perryman v. Greenville, 51 Ala. 507; Morris v. State, 47 Tex. 583; McClure v. Commonwealth, 80 Pa. St. 169; U. S. v. Nicolls, 4 Cranch C. C. 290; U. S. v. Bender, 5 Cranch 620.
R. M. Nichols for Wm. Freudenau, Admr., defendant.
(1) The dissolution of Cogswell & Company, in 1864, did not destroy the co-partnership as to collectible assets, so as to prevent or disable the surviving partner to bring suit or take other legal proceedings in the name of Cogswell & Company to collect the assets, and the taking out of letters for that purpose was consistent with his absolute right so to do, regardless of who owned the residuary interest in the fund. Hargadine v. Gibbons, 45 Mo.App. 460; Hargadine v. Gibbons, 114 Mo. 561; Bender v. Markle, 37 Mo.App. 235; Judy & Co., etc. v. Mfg. Co., 60 Mo.App. 114. (2) The asset, so far as creditors of Cogswell & Company were concerned, which was the purpose of the administration, was a partnership asset, and the statement by William Freudenau in his application, as surviving partner, to the probate court, that John C. Cogswell was interested in the property or assets of the co-partnership, consisting of the claim against the United States government in favor of Cogswell & Company, was not untrue or inconsistent with the assignment by John C. Cogswell to William Freudenau, because it was a partnership asset and belonged to the creditors of Cogswell & Company before the right of the individual partner could attach, and William Freudenau's omission to set forth the fact that he was assignee of the rights of John C. Cogswell after the payment of the creditors of Cogswell & Company, was immaterial and foreign to the purpose of the application. McWilliams v. Ramsey, 23 Ala. 819; Bates on Partnership, secs. 183, 715, 756, 1098; Level v. Ferris, 24 Mo.App. 445; Goddard, etc. v. McCune, 122 Mo. 426. (3) While the heirs of Cogswell had no interest, and consequently could not be injured by any act which Mr. Freudenau could do in relation to the fund, but assuming that they had an interest, how have they in any way changed their position by reason of any act done by Mr. Freudenau, by which Mr. Freudenau would be estopped to assert his claim to the fund? Gray v. Gray, 83 Mo. 111; Bigelow on Estoppel (4 Ed.), 445; Johnson, etc. v. Railroad, 126 Mo. 353; Brinkerhoff v. Horn, 83 Mo.App. 120; Ford v. Fellows, 34 Mo.App. 630; Horton v. Hodgton, 32 Me. 127; Conkey v. Hawthorne, 69 Wis. 194.
In 1859 or 1860, John C. Cogswell and William Freudenau the defendant, were partners in the milling business in the city of St. Louis. The co-partnership paid sundry taxes to the United States government, which turned out to have been illegally collected and were afterwards refunded by the government between the years 1868 and 1897, the last money being refunded in the latter year and amounting to thirteen hundred and six dollars. Congress passed an act for the relief of Cogswell & Company in 1897, on learning of which the heirs of John C. Cogswell set up a claim to one-half the money which was to be refunded, before the proper department of the government, and William Freudenau made a claim to all of it as his individual property by virtue of an assignment from his former partner, John C. Cogswell.
Cogswell's heirs consulted an attorney on learning of said act of Congress, and while the matter was in the hands of this attorney and being pushed by him before the department, he learned of Freudenau's claim, which was likewise being pushed by the latter's attorney. Some correspondence and interviews ensued between Freudenau and Maginn, the attorney of the Cogswell heirs, in which Freudenau made known to Maginn his claim to the whole of the fund on the ground that it had been assigned to him by Cogswell, and Maginn asserted against this claim, that the amount was a partnership asset and half of it belonged to his clients, the heirs of John C. Cogswell.
The Federal government refused to pay it to any one except a duly qualified administrator of the estate of Cogswell & Company, and Freudenau, as the surviving partner, took out letters of administration on the partnership estate in the probate court of the city of St. Louis. His application for letters was as follows:
Judge of the Probate Court of the City of St. Louis:
It will be seen from the foregoing application that Freudenau stated the interest of John C. Cogswell deceased, in the property and assets of the co-partnership did not exceed the sum of six hundred and fifty-three dollars in value, and that the assets consisted solely of a claim against the United States by the aforesaid firm for one thousand three hundred and six dollars, thus designating as a partnership asset the very money now in controversy. The United States paid the money to Freudenau as administrator, who placed it to his credit as administrator in the Mississippi Valley Trust Company and afterwards checked it out and used it for his own benefit. When the time came for him to make final settlement, instead of making one, he filed in the probate court a statement in regard to the administration in which he referred to the old firm of Cogswell & Company and recited that at the time of the dissolution of it Cogswell assigned to him all his interest in the nonavailable assets, including the claim against the United States government; that during the lifetime of Cogswell he collected a large amount of those unavailable claims with the knowledge of Cogswell who never demanded any part thereof nor was asked to defray any part of the cost of collection; that one of those assets was the item in controversy, in order to collect which he (Freudenau) was compelled by the comptroller of the United States treasury to...
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