Jackson v. Powell

• Decision Date: 06 February 1905
• Citation: 110 Mo. App. 249,84 S.W. 1132
• Parties: JACKSON v. POWELL.
• Court: Missouri Court of Appeals

84 S.W. 1132

110 Mo. App. 249

JACKSON v. POWELL.

Kansas City Court of Appeals. Missouri.

February 6, 1905.

PARTNERSHIP — ACTION ON ACCOUNT — JURISDICTION — PLEADING — WAIVER OF DEFECTS — CREDIBILITY OF WITNESS.

1. In an action between former partners on a partnership account, where defendant, without objecting that the petition fails to allege a partnership settlement, supplies such defect by answer, he cannot object to the introduction of evidence because of such defect in the petition.

2. Where partnership accounts have been settled and a balance determined, the fact that one or two items of account were omitted does not give the court of equity jurisdiction of such items, but the remedy thereon is at law.

3. It being the "willful" or "intentional" false statement of a material fact that impeaches the credibility of a witness, it is error to instruct the jury that, if any witness "has sworn falsely as to any material fact, you may disregard the whole of such witness' testimony."

Appeal from Circuit Court, Callaway County; John A. Hockaday, Judge.

Action by J. B. Jackson against Samuel H. Powell. From a judgment for plaintiff, defendant appeals. Reversed.

D. P. Bailey and I. W. Boulware, for appellant. N. D. Thurmond, for respondent.

JOHNSON, J.

In this action plaintiff sought to recover at law on account of a number of items growing out of a partnership which previously existed between him and defendant. A livery stable had been the business venture of the firm. The petition alleged the sale by plaintiff to defendant of his interest in the partnership property, but stated that the sale "only included the property, horses, buggies, wagons, and other things used in the livery business, but did not include the accounts defendant was owing to the firm." A number of items of such indebtedness was charged, including one relating to a hearse and one to a spring wagon; upon the former of which a partial payment, and upon the latter full payment, had been made out of partnership funds. Defendant was alleged to be indebted to plaintiff upon these and the other items mentioned. No allegation of any kind of a partnership settlement was made. Defendant's answer, however, pleaded a dissolution of the partnership, the submission by the partners to arbitration of all matters in dispute between them, including all of the items sued upon, and the award of the arbitrators, after a hearing, that no indebtedness existed between the parties; in other words, that all of the partnership affairs had been settled by voluntary arbitration. The reply admitted the settlement by arbitration, and that all of the items of indebtedness mentioned in the petition were included therein, except the two relating to the hearse and spring wagon, which, it was alleged, were not submitted to the arbitrators, and consequently not considered by them in making their award. Judgment was prayed for in the reply upon these two items. At the trial defendant unsuccessfully objected to the introduction of any evidence, on the ground that the court was without jurisdiction of the subject-matter. The fact of an arbitration was admitted, but no written evidence of the matters submitted was introduced. They were the subject of parol testimony, and the contest revolved around the fact of the submission of the hearse and spring wagon items. The evidence on this point was as conflicting as the claims of the respective parties. Verdict and judgment were for the plaintiff on both items.

The trial court properly overruled the...