Jones v. Shaw

• Decision Date: 30 April 1878
• Citation: 67 Mo. 667
• Parties: JONES v. SHAW et al., Appellants.
• Court: Missouri Supreme Court

67 Mo. 667

JONES

v.SHAW et al., Appellants.

Supreme Court of Missouri.

April Term, 1878.

Appeal from Buchanan Circuit Court--HON. JOSEPH P. GRUBB, Judge.

Bennett Pike for appellants.

H. M. Ramey for respondent.

HOUGH, J.

This was a suit on a promissory note for $400, dated November 20th, 1874, due one day after date. Defendants averred in their answer that plaintiff and the defendant Shaw entered into copartnership about the 20th day of October, 1874, for the purpose of buying and selling hogs during the packing season of 1874; that about said 20th day of October the plaintiff, for the purpose of starting said business, advanced to the defendant Shaw the sum of $400, which said defendant paid out, together with large sums of his own, in the purchase of hogs, which were shipped to and sold by the plaintiff; that it was agreed and understood between defendant Shaw and the plaintiff that said sum of $400 should be left with the defendant as a permanent fund for said partnership until said partnership business was settled. The answer further averred that on or about the 20th day of November, 1874, and after a shipment of hogs had been made by defendant Shaw to St. Joseph, Missouri, in behalf of plaintiff and defendant, and on which there had been a loss of about $200, the plaintiff went up to Craig, Missouri, where the defendant Shaw was living, and requested defendant Shaw to execute a note to him for said $400 as a memorandum of the amount that he, plaintiff, had advanced to the defendant as aforesaid, and that said note was so executed at that time, not as an evidence of absolute indebtedness of defendant Shaw to said plaintiff, but as evidence of a contingent indebtedness in the event that the said copartnership should turn out prosperously; that said copartnership continued during the said packing season; that the same was not prosperous, but that the losses accruing and growing out of same amounted to about $1,400, of which amount plaintiff was responsible and liable for one-half; that defendant Shaw has been held liable for and has paid the said amount of $1,400; that there has never been any settlement of said partnership matter between plaintiff and defendant Shaw, nor any accounting had, but that the said partnership is still unsettled; that on or about the 10th day of January, 1875, plaintiff requested defendant to procure the signature of defendant Cranchler to said note, already signed by defendant, as a security thereon, and only desired the note secured so that if there should be anything coming to him, plaintiff, on a final settlement between him and defendant Shaw, the amount due on said note should be secure, and that he would hold the note simply and solely as a security for the amount in the event aforesaid. Defendants further averred that Shaw had paid $700 more than his share of the losses of the firm; that plaintiff was not entitled to recover on said note until the settlement of the copartnership, and asked to set off said sum of $700 against the note, and prayed judgment for the balance. This defense was, on motion of the defendant, stricken out by the court. Judgment was rendered for the plaintiff for the amount of...