In re Whitlow
| Decision Date | 04 November 1913 |
| Citation | 167 S.W. 463,184 Mo.App. 229 |
| Parties | In re WARNER WHITLOW, Deceased; v. ADDIE L. WHITLOW, Appellant JOSEPH W. SKINNER, Administrator, Respondent, |
| Court | Missouri Court of Appeals |
Opinion Modified and Motion for Rehearing Overruled June 20 1914.
Appeal from St. Louis City Circuit Court.--Hon. W. B. Homer, Judge.
REVERSED AND REMANDED (with directions).
Judgment reversed and cause remanded.
W. M. Williams and John Cosgrove for appellant.
(1) Mr. J. W. Skinner had no interest in the body of the estate upon which he sought to administer. The only interest he had was in the profits, if there were any, and as there were no profits the trial court erred in allowing one-half of the estate which had been put into the venture by Mr. Whitlow, alone. Mr. Skinner risked nothing. He was not liable for any losses in the venture, he contributed nothing but his time as superintendent of the work, and was therefore not a partner of Mr. Whitlow. Hughes v. Ewing, 162 Mo. 295; Thompson v. Holden, 117 Mo. 118; Kellog Newspaper Co. v. Farell, 88 Mo. 594; Glore v. Dawson, 106 Mo.App. 107; Campbell v. Dent, 54 Mo. 325; Bank v. Outwaite, 50 Mo.App. 124; Sawyer v. Burris, 141 Mo.App. 117; Mingus v. Bank of Ethel, 136 Mo.App. 407; Chapin v. Cherey, 147 S.W. 1092. (2) Had a partnership existed between Whitlow and Skinner at the time the agreement was entered into July 11, 1901, the subsequent bankruptcy of Mr. Skinner dissolved the partnership if one existed, and the interest of Mr. Skinner, whatever it was, passed by operation of law to the trustee in bankruptcy. Scruby v. Norman, 91 Mo.App. 522; Kennedy v. Loan Co., 100 Mo.App. 269; Section 70, Bankruptcy Act; Howard v. Scott, 225 Mo. 718. (3) The judgment of the circuit court of the city of St. Louis, rendered Feb. 3, 1908, wherein Mrs. J. W. Skinner was plaintiff v. J. W. Skinner, administrator of the alleged partnership estate of Warner Whitlow, Addie L. Whitlow, interpleader, was a complete settlement and determination of the existence of the partnership between Warner Whitlow and J. W. Skinner and the trial court erred in refusing to declare the law as prayed by appellant in her instructions; and also erred in declaration of law given at the request of respondent. Garland v. Smith, 164 Mo. 22. It was necessary for counsel for Mrs. Skinner, in her suit against respondent herein, to establish the existence of a partnership between Warner Whitlow and J. W. Skinner, her husband, and the fact that Mrs. Skinner is not a party to this proceeding does not destroy or weaken the force and effect of the prior adjudication that no partnership existed between Warner Whitlow and J. W. Skinner. 24 Am. & Eng. Ency. of Law (2 Ed.), 217; Nave v. Adams, 107 Mo. 420; Summett v. Realty & Brokerage Co., 208 Mo. 501; Womach v. St. Joe, 201 Mo. 467; 24 Am. & Eng. Ency. of Law (2 Ed.), 733. (4) The claim of Mrs. Skinner, had it been allowed, would have absorbed the whole of the partnership estate of Warner Whitlow. The claim was really and in fact that of J. W. Skinner, and he did all he could to have said claim allowed and the principle applies that "one who by consent permits a matter to be litigated in another's name who is only nominally interested in the matter is bound by the judgment rendered therein." Burris v. Gavin, 118 Ind. 320; Sauls v. Freeman, 12 Am. St. Rep. 190, 24 Fla. 209. Mr. Skinner was an "adversary party" and as he claims he was a partner of Mr. Whitlow, and therefore interested as a real defendant in the suit brought by his wife and was resisting a claim which, if allowed, would be in part paid with his property, then the question of the existence of such partnership was tried and determined in the former proceeding and cannot again be litigated here. City of Springfield v. Plummer, 89 Mo.App. 515; Summett v. Realty & Brokerage Co., 208 Mo. 501. (5) We are not attacking the judgment of the probate court of the city of St. Louis by which Mr. Skinner was appointed administrator of the alleged partnership estate of Warner Whitlow, deceased. The judgment of the probate court vested in Mr. Skinner the title to the property in trust, only for those really entitled thereto. His title is a qualified one. Byers et al. v. Hicks, 105 Mo.App. 72; Richardson, Admr. v. Coles et al., 160 Mo. 372. The appointment of J. W. Skinner as administrator of the so-called partnership estate did not charge, or in any way change the title to the property, nor did the filing of a bond by Mr. Skinner as surviving partner and its approval by the probate court in any way determine or establish his title as surviving partner. This is really a proceeding to recover personalty which belongs to appellant. Her title is not affected by any act of the probate court. Strode v. Gilpen, 187 Mo. 391 and 392. (6) The credits allowed Mr. Skinner for expenses incurred after he was appointed administrator should not have been allowed. Appellant objected to the allowance of $ 1321.85 expenses paid out for blacksmithing, labor, etc.; he had no right as surviving partner to continue the business with the partnership effects. Roberts v. Hendrickson, 75 Mo.App. 484; Richardson v. O'Connell, 88 Mo.App. 12.
Frank H. Haskins for respondent.
(1) The issuing of letters to Joseph W. Skinner was res adjudicata as to the existence of a partnership and until set aside by a direct proceeding had the force and effect of a judgment. This judgment could only be set aside by a direct proceeding to revoke the letters and could not be attacked in a collateral proceeding. Vermillion v. Le Clur, 89 Mo.App. 55; Riley v. McCord, 24 Mo. 265; Johnson v. Beazley, 65 Mo. 250; Dunn v. German Am. Bank, 109 Mo. 101; Geisel v. Jones, 123 Mo.App. 45; Branford v. Wolf, 103 Mo. 391. The written contract introduced in evidence was prima-facie evidence of a partnership between Skinner & Whitlow. Torbert v. Jeffrey, 161 Mo. 645; Lengle v. Smith, 48 Mo. 276; Pettee v. Appleton, 114 Mass. 114; Steckman v. Gault State Bank, 126 Mo.App. 664; Glore v. Dawson, 106 Mo.App. 107. (3) The judgment rejecting the claim of Mrs. Skinner against the estate was not res adjudicata against Joseph W. Skinner on the question whether a partnership existed between himself and Warner Whitlow. Perkins v. Goddin, 111 Mo.App. 442; State to use v. Hollinshead, 83 Mo.App. 682; McBurnie v. Seaton, 111 Ind. 56; Furlong v. Banta, 80 Hun, 248; Johnson v. Graves, 129 Ind. 128; McMahan v. Geiger, 73 Mo. 145; Jones v. Vert, 121 Ind. 142; Leaman v. Sample, 91 Ind. 236; City of Springfield v. Plummer, 89 Mo.App. 515. (4) In the absence of agreement the partners are presumed to share equally. Miller v. Hale, 96 Mo.App. 427. (5) If the property held by Skinner as administrator of the partnership estate was not in fact the property of the partnership then the proper remedy of those claiming it is an action against Skinner for conversion and not by excepting to his final settlement. Strode v. Gilpin, 187 Mo. 383. (6) An attorney fee may be allowed for defending exceptions in the circuit court. Jacobs v. Jacobs, 99 Mo. 427; In re Meeker's Est., 45 Mo.App. 186.
This is an appeal from a judgment overruling exceptions of appellant, the widow of Warner Whitlow, deceased, to the final settlement of respondent, Joseph W. Skinner, as administrator of the partnership estate of "Warner Whitlow;" the respondent having administered thereupon as the surviving partner. The record discloses that, some time prior to his death, Warner Whitlow had a contract for doing certain railroad work in the State of Arkansas, and that, for the purpose of carrying out this said contract, he entered into an agreement with respondent Skinner, as follows:
"This agreement made this 11th day of July, A. D. 1901, by and between Warner Whitlow, party of the first part and J. W. Skinner, party of the second part, Witnesseth: That said Warner Whitlow having entered into a contract with J. H. Reynolds & Co. to do the pile driving, bridging and pipe laying on the White River Railway to about Sta. 1010 and the spur track to the phosphate mine and whereas the said Whitlow is desirous that the said J. W. Skinner shall superintend the construction of said work, therefore it is mutually agreed between the parties hereto, that in consideration of the said J. W. Skinner superintending said work the profits arising from said work are to be equally divided between the said Warner Whitlow and J. W. Skinner."
After the completion of the railroad work in question, the "outfit" used in doing the same, and which consisted of tools, horses, scrapers, pile drivers, etc., was brought to the city of St. Louis. Whitlow died on the 28th day of July, 1904, and thereafter Skinner applied to the probate court of the city of St. Louis for letters of administration as his surviving partner. Such letters were granted to respondent as the surviving partner, and later the property here involved was sold by order of the probate court. It appears that Mrs. Skinner, wife of respondent presented a claim against the partnership estate for a sum in excess of $ 1500. Her claim was allowed by the probate court for $ 1207.05, and from the judgment allowing the same the appellant herein appealed to the circuit court. The latter court referred the cause to a referee who, upon reporting to the court, recommended the allowance of a portion of this claim. In passing upon exceptions to the referee's report, the court found that the referee erred in holding that a partnership existed between respondent and...
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