Ober v. Indianapolis & St. Louis R.R. Co.

• Decision Date: 12 December 1882
• Citation: 13 Mo.App. 81
• Parties: WILLIAM A. OBER ET AL., Respondents, v. INDIANAPOLIS AND ST. LOUIS RAILROAD COMPANY, Appellant.
• Court: Missouri Court of Appeals

13 Mo.App. 81

WILLIAM A. OBER ET AL., Respondents,

v.INDIANAPOLIS AND ST. LOUIS RAILROAD COMPANY, Appellant.

St. Louis Court of Appeals, Missouri.

Dec. 12, 1882.

APPEAL from the St. Louis Circuit Court, ADAMS, J.

Reversed, and remanded nisi.

L. B. VALLIANT, for the appellant: When a partnership is dissolved by mutual consent, and some months afterwards one of the former partners dies, the remaining former partner does not thereby become the “surviving partner” of the firm. And in such event the surviving former partner cannot alone and as ““““surviving partner” sue for and collect a debt that was owing to the former firm, but he must be joined in such suit by the administrator of such deceased former partner.-- Mutual Savings Institution v. Enslin, 37 Mo. 454; Bredon v. Mutual Savings Institution, 28 Mo. 181. The carrier was not liable in this action.--Hutch. on Car., sects. 720, 737; Redf. on Car., sects. 318, 320; Edwards on Bail. 561-563.

E. B. SHERZER, for the respondent: It is competent for plaintiff to sue the carrier in tort for breach of his common-law duty, and if there be a written contract modifying same, defendant must plead it.-- Lupe v. Railroad Co., 3 Mo. App. 77, 84, 85; Clark v. Railroad Co., 64 Mo. 440, 446, 447. Having received the property for carriage, executed its receipt or bill of lading, it is estopped as against the parties who parted with their money on the faith thereof, from contradicting or disputing the duty by law, imposed under such receipt or contract.-- Armentrout v. Railroad Co., 1 Mo. App. 158, 162. The measure of damages was correctly stated. It is the difference in market value at place of destination, as and when, but for delay, property should have been received, and market value as received.-- Tucker v. Railroad Co., 50 Mo. 385; Faulkner v. Railroad Co., 51 Mo. 311. The dissolution of partnership and subsequent death, does not the less, as to unadjusted matters, render survivor, surviving partner under the law.-- Mudd v. Bast, 34 Mo. 465; Kinsler v. McCants, 4 Rich. L. 46; Strange v. Graham, 56 Ala. 614; Stillwell v. Gray, 17 Ark. 473; Shields v. Fuller, 4 Wis. 102; Clark v. Howe, 25 Me. 560.

THOMPSON, J., delivered the opinion of the court.

This is an action against a common carrier for damages for delay in shipping goods which were consigned to the firm of which the plaintiff was a member, for sale and account. The plaintiff had a verdict and judgment for $800. We shall consider separately the substantial questions to which our attention is invited:--

1. The first of these questions relates to the propriety of the ruling of the court in refusing an instruction that the plaintiff could not recover. It is claimed that such an instruction ought to have been given, on the ground that the answer denied that the plaintiff was the surviving partner of the firm of W. A. Ober & Co., in which capacity he sues. The evidence shows that, after the transactions which form the subject of this suit, the firm of W. A. Ober & Co. was dissolved, and that, three or four months subsequently, William C. Rutland, who, with the plaintiff, constituted the firm, died. The defendant's contention is that, because the firm was dissolved by mutual consent prior to the death of Rutland, the plaintiff does not occupy the legal status of surviving partner of the firm, which he would have occupied if the firm had continued in existence until that time. We understand that the law is the other way. A partnership firm is not dissolved for all purposes until the business of the firm is wound up, its debts paid, and the remaining partnership property divided between the partners. The conventional dissolution of a partnership, which is usually agreed upon for the purpose of discontinuing business and going into liquidation, does not have any effect upon the ownership of the partnership property, unless the contract of dissolution so provides, a thing which is not shown to have been the case here. Mudd v. Bast, 34 Mo. 465. This being so, the mere fact that the firm was dissolved some months prior to the death of Rutland, did not prevent the plaintiff from succeeding to the rights in action of the firm, including the right to maintain this suit. The residence of this firm was in Arkansas, and the question is to be determined according to the law of Arkansas. That this is the correct view of it is shown by the observations of the supreme court of that state in Stillwell v. Gray (17 Ark. 473, 475, 477). We do not understand that the case of Bredow v. Mutual Savings Institution (28 Mo. 181, and 37 Mo. 453) contains anything contrary to the general current of authority upon this point. On the contrary, it seems to us that that case is entirely in accordance with the foregoing statement of doctrine.

It is claimed that the court erred in overruling a motion to strike out certain parts of the plaintiff's reply. The first bill of exceptions shows that the defendant made such a motion, and that it was overruled; but it does not state what parts of the reply it was moved to strike out. What purports to have been the motion is copied at length into the transcript by the clerk; but this we cannot notice, for any purpose, without disregarding a rule of practice which has long been settled and constantly acted upon by the supreme court and by this court. Jefferson City v. Opel, 67 Mo. 394. As the purport of this motion is not, therefore, properly brought to our attention, we must presume that the court rightly overruled it.

3. It appeared in evidence that, on the third day of October, 1879, J. D. Ober & Co. delivered to the defendants, as common carriers, at Dorsey, Illinois, three hundred barrels of apples, and took a bill of lading therefor, which showed that the apples were consigned to W. A. Ober & Co., at Little Rock, and that they were to be shipped over the defendant's road to East St. Louis, Illinois, and there delivered to the Iron Mountain Railroad to complete the transit; that on the same day, J. D. Ober & Co. drew a draft on W. A. Ober & Co., for $450, and on the following day negotiated it, with the bill of lading attached, at a bank in St. Louis; that this draft, with the bill of lading, was sent forward to W. A. Ober & Co., at Little Rock, and was by them paid, on the 6th of October, and before the arrival of the apples; that the apples were shipped to W. A. Ober & Co., to be sold and accounted for by them as commission merchants, and that the draft was drawn upon them in pursuance of a previous arrangement between J. D. Ober & Co. and them, by which the firm were allowed to draw upon them against shipments of apples consigned to them for sale, at the rate of $1.50 per barrel. It also appeared that neither member of the firm of J. D. Ober & Co. was a member of the firm of W. A. Ober & Co.

The usual running time between Dorsey and East St. Louis was two hours. The apples were detained by the defendant at Dorsey for six days; but evidence was offered and excluded which tended to show that this was done at the request of J. D. Ober & Co. The apples were winter apples, and good keepers. Holes were cut in the barrels for ventilation, and the evidence tends to show that if they had been forwarded promptly, they would have arrived at Little Rock in good condition, and would have fetched, in that market, from $3.25 to $4.25 per barrel. The weather was warm, and before they left Dorsey, t...