Morin v. Martin's Adm'r

• Citation: 25 Mo. 360
• Parties: MORIN, Respondent, v. MARTIN'S ADMINISTRATOR, Appellant.
• Decision Date: 31 July 1857
• Court: United States State Supreme Court of Missouri

25 Mo. 360

MORIN, Respondent,

v.MARTIN'S ADMINISTRATOR, Appellant.

Supreme Court of Missouri.

July Term, 1857.

1. Where one of two partners pays to a creditor of the firm one-half the debt due from the partnership, the partner so paying will not be entitled to recover of the other partner the sum so paid, unless it should appear, upon a settlement of the affairs of the partnership, that such sum is due to him from the partnership.

Appeal from Platte Circuit Court.

Plaintiff, Morin, presented to the Probate Court of Platte county for allowance a demand against the estate of James B. Martin, deceased, of one-half of $3,400, with interest from July 1st, 1849, to July 16th, 1855, deducting certain items, allowed as credits, amounting to $256.50. The claim was allowed in the Probate Court, and an appeal was taken to the Circuit Court. The cause was submitted to the court sitting as a jury, and the court finds the facts as follows: “That in the year 1849 decedent, James B. Martin, and plaintiff owned certain mill property in Platte county, upon which F. B. Martin had a lien for about the sum of $3,400; that Morin became interested in the mill by purchase from J. B. Martin, deceased, and was to extinguish this lien; that on or about November, 1849, plaintiff paid, or offered to pay, to F. B. Martin's agent the said sum of $3,400, which amount, by consent of said agent, was left in the hands of said plaintiff, and J. B. Martin, deceased, with interest at the rate of six per cent. per annum from the first day of June, 1849; that said plaintiff has since paid, or caused to be paid, to said F. B. Martin about the sum of $1,600, and that the above item of $3,400 has never been settled between said plaintiff and Martin; and that the plaintiff is entitled to recover of defendant the one-half of the sum last above named, with interest from the 1st day of June, 1849, less the amount of credits upon plaintiff's account.”

Judgment was accordingly rendered in favor of plaintiff for $2,041.25. A motion for a review was made and overruled.

Gardenhire and Morrow, for appellant.

I. There was an insufficient finding of the facts by the court, and, therefore, a review of the facts ought to have been had by the court.

II. The finding of the court was against the law and the facts of the case.

III. The Probate Court had no jurisdiction of the case, and consequently the Circuit Court could have none by appeal.

IV. The Circuit Court ought to have reviewed the law and the facts of the case, and granted a new trial, or to have arrested the judgment.

V. Spratt's testimony ought not to have been heard by the court, for the reason that it was hearsay, incompetent, irrelevant and illegal.

VI. Atchison's deposition ought not to have been read, inasmuch as Atchison himself was present and examined.

VII. It does not appear from the finding of the court or the evidence in the cause, that there ever was a dissolution of the partnership between the plaintiff and appellant's intestate; therefore this proceeding should have been according to the rules of practice which govern courts of chancery. (Sess. Acts, 1849, p. 428; Sess. Acts, 1847, sec. 4, p. 32.)

Napton, for respondent.

I. The finding of the court, although not embracing all the facts which the evidence discloses, is sufficient to show that the half of $3,400, with interest, etc., was due to plaintiff.

II. The partnership, its dissolution and final settlement, as proved by Spratt, had no connection with the indebtedness sued for and established. It appeared that Morin and Martin paid off their respective shares of the $3,400 mortgage--Morin, through the witness Almond, and Martin, through Paxton; that the partnership...