Perry v. Musser

• Decision Date: 31 October 1878
• Citation: 68 Mo. 477
• Parties: PERRY v. MUSSER, Appellant.
• Court: Missouri Supreme Court

68 Mo. 477

PERRY

v.MUSSER, Appellant.

Supreme Court of Missouri.

October Term, 1878.

Appeal from Livingston Circuit Court.--HON. E. J. BROADDUS, Judge.

Shanklin, Low & McDougal for appellant.

Crosby Johnson for respondent.

HENRY, J.

The substance of this petition, is that on the 15th day of November, 1866, plaintiff and defendant entered into a co-partnership for the purpose of dealing in hogs; that as such partners, on the 21st day of December, 1866, they sold a lot of hogs to one Hersey for $2,362.50, for which Hersey executed two notes for $1,181.25 each, payable one in six, and the other in twelve months from that date with interest; that on the 8th day of January, 1867, they made a final settlement, and accounting as copartners, and dissolved their co-partnership, which said settlement and accounting was reduced to writing; that by the terms of said written agreement the defendant was to take said notes, which should be his property on condition that they were paid when due, and if defendant collected the two notes he was to pay to plaintiff $560 with interest; that defendant, as soon as said notes became due, should proceed with due diligence to collect the money, and if not collected when due, the notes were to be the property of plaintiff and defendant, who were to equally bear any loss upon them; that said notes were transferred and delivered to defendant, that one of them was paid at maturity; that defendant did not use due diligence in presenting the other note when it became due; that defendant afterwards instituted suit upon it in the State of Kansas, and in 1869 obtained a judgment thereon, and in 1870, without the knowledge or consent of plaintiff, released said judgment, took other notes from Hersey payable to himself for the amount, and a mortgage on land to secure the same; that Hersey has since paid a portion of said debt, but how much, plaintiff is not advised; that by reason of defendant's failure to use diligence to collect said notes, and of his conversion of the same to his own use and releasing said judgment, he became liable to pay to plaintiff said sum of $560.

The defendant's answer is an admission of the facts alleged, except a failure on his part to exercise proper diligence, and a denial that the settlement made on the 8th day of January, 1867, was reduced to writing, and avers that the only agreement between the parties reduced to writing was the following. “This agreement made this 8th day of January, 1867, between Solomon Musser and D. R. Perry, of Caldwell county, Missouri, Witnesseth, that, whereas, said Musser and Perry have sold a lot or lots of hogs to F. P. Hersey and taken notes therefor, dated December 21st, 1866, and payable to Hall and Rice, one at sixty days for $1,181.25, and one at ninety days for $1,181.25, and upon settlement it appears that there is now $560 due from said Musser to said Perry, should these notes be paid to said Musser or his order; now, therefore, it is agreed between the said parties that said notes and the proceeds thereof, are to be the property of said Musser, conditioned upon their payment when due, and if he collects them, then he is to pay said Perry the said sum of $560, and the balance of the proceeds he is to retain. But should default be made in the payment of said notes, and the same be not collected when due, then said notes are to be the property of said Musser and Perry jointly, and they are to bear the loss upon them...