Owsley v. Owsley

• Decision Date: 15 January 1931
• Docket Number: 4889
• Citation: 34 S.W.2d 558
• Parties: OWSLEY v. OWSLEY.
• Court: Missouri Court of Appeals

34 S.W.2d 558

OWSLEY v. OWSLEY.

No. 4889

Court of Appeals of Missouri, Springfield

January 15, 1931

Appeal from Circuit Court, Newton County; Emory E. Smith, Judge.

“ Not to be officially published.”

Action by F. T. Owsley against C. R. Owsley. From the judgment, both parties appeal.

Reversed and remanded, with direction.

Ruark & Ruark, of Neosho, for appellant F. T. Owsley.

A. R Dunn, of Neosho, for appellant C. R. Owsley.

OPINION

COX P. J.

Action for dissolution and settlement of a partnership.

A referee was appointed by the court, who heard the evidence and made a report to the court recommending that the plaintiff and defendant be adjudged to each own a one-half interest in certain property still belonging to the partnership, and that plaintiff be given judgment against defendant for the sum of $556.79. Both parties filed exceptions to the report of the referee, which were overruled. The court then entered judgment in favor of plaintiff against defendant for $556.79, and, in addition, adjudged that plaintiff should convey to defendant by warranty deed a one-half interest in certain lands in the state of Colorado. Both parties appealed.

The referee, Mr. Daniel Stratton, made a very careful study of the evidence in this case, and found it impossible to state an account between the parties that could be mathematically demonstrated to be correct, but did the best he could, and, after a careful review of the evidence upon our part, we are convinced that he came as nearly arriving at a correct conclusion as could be done from the evidence, except in one particular. which we shall notice later.

The plaintiff and defendant are brothers. Plaintiff was a widower living in Neosho, Mo., whose children were grown and were living elsewhere. The defendant had a family and was living in the state of Colorado. These brothers entered into a contract of partnership in writing, by which they agreed to enter into the real estate, loan, and insurance business, and any other business that the parties might agree upon, and to continue indefinitely. The plaintiff agreed to put into the partnership $30,000, the income from which should become the property of the partnership. The defendant agreed to put his entire wealth into the business, the income from which should become the property of the partnership also. Defendant’s holdings at the time were estimated at about $23,000. The plaintiff purchased rental property in Neosho, Mo., and defendant owned land in Colorado and other places. It seems that the amount actually invested by plaintiff in real estate was about $28,000. The parties agreed to live together during the partnership, or as long as should be agreeable, and the groceries and household expenses were to be paid from the business, but each partner should buy from his own funds the clothing for himself and family. The title to all property put into the partnership should remain in the party putting it in. The defendant moved to Neosho, Mo., and the parties lived together in the house of plaintiff. They began operating under the partnership agreement in July, 1924, and continued until November, 1925, when they gave up their real estate and loan business and purchased a mill and farm connected therewith, and operated that until September, 1927, when the mill and farm were sold and the partnership business ceased.

Defendant contends that, when the mill was sold, he and plaintiff made and had a complete settlement of the partnership business, and that plaintiff, for that reason, cannot maintain this action. The referee finds against him on that question, and we think rightly so. In any event, defendant filed an answer and counterclaim and consented to the appointment of a referee to take testimony and make an accounting between the parties, and cannot now be permitted to urge a complete settlement between the parties before suit.

Before the trial began, defendant filed a motion to dismiss plaintiff’s cause of action upon the ground that the partnership had been dissolved by mutual consent of the parties and a full settlement made before this suit was instituted. This motion was not acted upon by the court and defendant consented to the appointment of a referee and went to trial without asking the court to pass upon this motion; hence he cannot now be heard to complain of the failure of the court to pass upon his motion.

The evidence, as stated by the referee, was very unsatisfactory. Defendant kept the books, acted as treasurer, and handled the money belonging to the partnership. The referee found: That "the books were poorly kept. Numerous corrections erasures and alterations appear and little or no detailed information is furnished as to the source of funds credited or the purpose for which expenditures were made. It might be said, however, that these erasures and changes are plainly visible in many places, the old figures being written over or only partially erased. There seems to have been no effort made to conceal the fact that erasures and alterations were made. There are no vouchers, receipts or cancelled checks with which the book may be compared in order to check its accuracy." The defendant testified that in the business in the mill each sale or transaction was put down at the time on a pad or daily sales book and afterward transcribed to the book of sales. There were a great number of these pads and cancelled checks left in the mill when it was sold, and these were afterward destroyed by the purchaser of the mill. There is no evidence that defendant...