Palmer v. Marshall

• Citation: 24 S.W.2d 229
• Decision Date: 27 January 1930
• Docket Number: No. 16732.,16732.
• Parties: PALMER et al. v. MARSHALL et al.
• Court: Court of Appeal of Missouri (US)

24 S.W.2d 229

PALMER et al. v. MARSHALL et al.

No. 16732.

Kansas City Court of Appeals. Missouri.

January 27, 1930.

Appeal from Circuit Court, Bates County; C. A. Calvird, Judge.

Action by L. Palmer and another, doing business in the name of Palmer & Lawson, against A. A. Marshall and another, partners doing business in the name of Marshall & Son, and others. Judgment for plaintiffs, and defendants Marshall appeal. Reversed and remanded, with directions.

De Armond & Maxey, of Butler, Thos. N. Haynes, of Harrisonville, and Madden, Freeman & Madden, of Kansas City, for appellants.

Jackson & Jackson and Silvers & Sheppard, all of Butler, for respondents.

BOYER, C.

Plaintiffs instituted this action by filing a petition in the nature of a bill in equity for an accounting. These appellants were joined with a number of other defendants. A referee was appointed, who submitted findings of fact and recommendation for judgment, all of which were adopted by the court. The judgment was for plaintiffs, and provided for separate relief against certain defendants, and for a joint money judgment against these appellants and one other defendant. These defendants alone appeal and assign as errors the following: (1) The petition fails to state a cause of action; (2) the findings of fact adopted by the court are insufficient in law to support the judgment; (3) the judgment is based upon findings of fact not in issue, and is based upon causes of action not pleaded; and (4) the evidence discloses no fraud or liability on the part of appellants.

Respondents claim that no exceptions were preserved, and consequently that nothing is before this court for consideration. Appellants, in effect, concede that the errors assigned are not based upon matters of exception, but are based upon and arise from the face of the record proper. In view of the contentions of the parties, and the nature of the assignments, we deem it expedient and essential to set out the petition, and that part of the findings of fact and the judgment relative to appellants. The petition is as follows:

"Plaintiffs for their amended petition state: That L. Palmer and G. A. Lawson are at the present time and during all times hereinafter mentioned have been engaged in buying and selling stock, and in the shipment of stock from Bates and Cass counties to the markets at Kansas City, Missouri, under the firm name of Palmer & Lawson.

"They state that Iola C. Bradley is a daughter of Daily Bradley, that M. D. Bradley is the wife of Daily Bradley, that the defendants A. A. Marshall and Garnett Marshall are at the present time and at all times hereinafter mentioned have been partners engaged in the elevator business and in shipping live stock from Archie, Mo., to the markets in Kansas City, Mo.

"Plaintiffs further state that about six years ago they employed the defendant Daily Bradley to buy feed and ship stock for them from Archie, Mo., to the markets at Kansas City, Mo., and Kansas City, Kan.

"That the plaintiffs agreed to and with the defendant Daily Bradley to pay him as compensation for his service 50 per cent. of the net profits of the business in shipping from Archie and in the handling of stock from Archie, Mo., that he was to receive no other or further compensation therefor.

"Plaintiffs further state that they borrowed from the Archie State Bank at Archie, Mo., a large amount of money from time to time and used the same as capital in the conduct of the business as aforesaid. That the said Daily Bradley was permitted to check upon the bank account of plaintiffs in said bank.

"Plaintiffs state that from time to time they borrowed money from said bank, executed their notes therefor, and that as stock was shipped out the returns from the sale of such stock were placed in the Archie State Bank to their credit.

"That in the conduct of their said business, their bank account amounted to something over $21,536.

"They further state that the said Daily Bradley checked out of the said account $21,536.73.

"The plaintiffs allege that the said Daily Bradley was only entitled to 50 per cent. of the net profits arising from the sale of stock handled and sold for the plaintiffs.

"That instead of checking to himself such net profits as named, he checked out for alleged expenses $4,943.68. He checked to his wife, M. D. Bradley, $4,304.83. He checked for board of himself $1,256.35. That he checked to himself personally $7,664.87, and that he appropriated to himself out of the proceeds of stock shipped out $360.

"Plaintiffs state that in the conduct of their business and in the spring of 1924 they had on hands of the stock which had been bought out of their partnership assets, 90 head of hogs and 103 head of cattle; that they also had on hands one set of stock scales of the value of $560 and one automobile of the value of $700; that these stock scales were used in connection with their business; that the automobile was used by the said Daily Bradley in the conduct of their business.

"Plaintiffs now state that the said Daily Bradley undertook to divert from their business the hogs and cattle aforesaid, and to that end he made a bill of sale for such stock to one Waldo C. Peterson, and that he caused the said Peterson to mortgage said stock to the defendants A. A. Marshall and Garnett Marshall.

"That the said Daily Bradley also gave to the said A. A. Marshall and Garnett Marshall at the time they took and received the chattel mortgages aforesaid, knew that the property so conveyed to them was the property of these plaintiffs.

"Plaintiffs now state that the hogs and cattle were sold on the Kansas City markets by said Marshalls and the said Bradley and the proceeds thereof have never been turned over to these plaintiffs; that out of the proceeds of such stock there was turned over to the defendant Iola C. Bradley the sum of $1,391.30, no part of which has ever been paid to these plaintiffs, that the stock scales and the automobile aforesaid have been in the use of the said Bradley and the said Marshalls since the date of said chattel mortgage May 27, 1924.

"Plaintiffs further state that while the said Daily Bradley was acting for them in the capacity aforesaid he bought the following real estate located in Butler, Bates County, Mo., to wit: Beginning at the northeast corner lot 6, block 7, Williams' addition to Butler and running thence south 95 feet, thence west 132 feet, thence north 95 feet and thence east to the place of beginning; that said property was purchased at an agreed price of $2,100; that there was at the time of such purchase a trust deed thereon given to secure $900, and that the said Bradley agreed to pay the rest of said purchase price in money on monthly payments. Plaintiffs say that the real estate was conveyed to the defendant M. D. Bradley and that she now holds title thereto.

"Plaintiffs further state that the purchase price of said property has been paid and that the same was paid out of the assets of the copartnership of plaintiffs.

"Plaintiffs now state that the said Daily Bradley, with the view of defrauding the plaintiffs out of their property aforesaid, diverted the assets of said copartnership as above stated to himself in the amounts above named, to his wife in the amount above named, and to his daughter, Iola C. Bradley, to the amount above named and to the said defendants A. A. Marshall and Garnett Marshall in the amount and in quantity and the kind above named. Plaintiffs further state that their property has been diverted from the partnership business by their said Daily Bradley and that each of the above named defendants has received a portion thereof as above set forth, and that they are now holding the same with all such property and the proceeds thereof from these plaintiffs. That the plaintiffs have no remedy at law.

"Wherefore, the premises considered, the plaintiffs pray that an accounting may be had as among all of the parties above named, that judgment may be rendered against Daily Bradley for the amount of assets he may have appropriated to himself and that a judgment rendered against M. D. Bradley for the amount of property she may have appropriated to herself, and that judgment may be rendered against Iola C. Bradley for the amount of money or property she may have appropriated to herself; that judgment may be rendered against the real estate above described to the amount of funds belonging to plaintiff that may have entered into the purchase price, and that a lien may be created in favor of plaintiffs on said property for such amount, that judgment may be rendered against A. A. Marshall and Garnett Marshall for the value of the property of plaintiffs, so taken over by them and unaccounted for to plaintiffs, and that the chattel mortgages given by Bradley to them as aforesaid may be set aside and that such property as remains in specie, that is to say, the stock scales of aforesaid, and the automobile of aforesaid, may be declared to be the property of these plaintiffs and that the said Marshalls and the said Daily Bradley may be required to pay the reasonable value thereof to plaintiffs, and for all such other and further relief as may be equitable in the premises."

The answer of all defendants was a general denial.

The pertinent parts of the referee's report on the findings of fact and recommendation for judgment against these appellants contains these statements:

"Under the evidence as thus presented the undersigned referee finds the facts to be as follows: That the firm of Palmer & Lawson is a partnership composed of L. Palmer and C. A. Lawson, and that from about the month of April, 1920, until about the 1st of April, 1924, the said firm was engaged in buying and shipping stock at Archie, Mo.; that the defendant Dailey Bradley was their agent at said place and that he was operating under an agreement with said firm to buy stock for the firm of Palmer & Lawson and ship the same at Archie, Missouri, and that ...