Maghee v. Baker

• Decision Date: 08 December 1860
• Citation: 15 Ind. 254
• Parties: Maghee and Another v. Baker and Another
• Court: Indiana Supreme Court

15 Ind. 254

Maghee and Another v. Baker and Another

Supreme Court of Indiana

December 8, 1860

APPEAL from the Knox Common Pleas.

The judgment is affirmed, with costs.

S Judah, for appellants.

D McDonald, for appellees.

OPINION

Davison, J.

John H. Maghee & Co., sued Christopher Baker, to subject certain funds in his possession to the payment of a debt. The complaint alleges these facts: In the year 1851, George Krebs and Christian Krebs, who were then partners under the name of "Geo. Krebs & Brother," purchased from plaintiffs, store goods, worth $ 900, for which they executed two promissory notes. In 1852, the makers of the notes dissolved their partnership, and, immediately thereafter Christian Krebs absconded, leaving the notes unpaid. After this, George Krebs entered into partnership with Baker, the defendant, and commenced business under the name of "Baker & Co." Krebs put into this concern $ 1,000, and the firm, thus constituted, continued business until the death of Geo. Krebs, which occurred in February, 1857. During the continuance of the firm of "Baker & Co.," the net profits thereof amounted to at least $ 2,000; one half of which belonged to Geo. Krebs. But, after his death, the defendant took possession of all the partnership assets and converted them to his own use, and still retains them. It is averred that the defendant refuses to account for the property, and fraudulently pretends that Geo. Krebs was not a member of the firm of "Baker & Co;" but that the firm was composed of Christopher Baker and Margaret Krebs, the wife of Geo. Krebs, deceased; that there never was any administration on the estate of the decedent, and that the plaintiffs are his only creditors. The relief prayed is, that the defendant be required to account for the property of the deceased, so in his hands, and that he pay the same into Court for the benefit of the decedent's creditors.

The answer contains three paragraphs. First. A general denial. Second. That to the extent of $ 300, the widow of Geo. Krebs is entitled to his property; and that he did not, at his death, have that sum. Third. That the entire interest claimed by the plaintiffs, was the sole and separate property of Margaret Krebs, the widow of George Krebs, and that they are not, therefore, entitled to an account, &c. To the second paragraph of the answer, the plaintiffs replied, that it was untrue; and, further, that Margaret Krebs had received $ 300, over and above the claim set up in the complaint:-- and to the third paragraph they replied, "That the property therein named was the property of George Krebs, and not the property of Margaret Krebs.

Upon the issues, there was a verdict for the defendant, and the Court, having refused a new trial, rendered judgment, &c.

The record does not profess to set out all the evidence given in the cause. It contains no bill of exceptions; but does contain an agreement, signed by the parties, which says there was proof, setting it out as follows: "George Krebs, the decedent, had been in mercantile business, at 'Edwardsport;' had failed in business, and the debt now claimed was then contracted by him. After this failure, he went to Vincennes, destitute of property, and married Margaret Watjen, whose father then gave her $ 300, in cash. He then removed to the 'Cross-roads,' where a certain connection in business was formed by Krebs, or by Krebs and wife, or by Margaret Krebs, the wife, with Baker, the defendant, under the firm of 'Baker & Co.' After the death of Krebs, Baker took possession of and retained the partnership property, to the amount of more than $ 1,000, above the debts of the firm. There never was any administration on the estate of Krebs; it was considered insolvent. Three witnesses testified that Krebs was Baker's partner, and six testified that Margaret Krebs was such partner. Of the concern, Baker was a recognized and active partner. Margaret attended in her dwelling to her family concerns. Krebs attended in the store of "Baker & Co." It was proved that Margaret put into the concern, at least $ 200, which was the only money put in by her, or her husband."

The motion for a new trial is based upon three grounds: First. The...