Phelps v. McNeely

• Decision Date: 31 October 1877
• Citation: 66 Mo. 554
• Parties: PHELPS v. MCNEELY, Appellant.
• Court: Missouri Supreme Court

66 Mo. 554

PHELPS

v.MCNEELY, Appellant.

Supreme Court of Missouri.

October Term, 1877.

Appeal from Andrew Circuit Court.--HON. HENRY S. KELLEY, Judge.

J. D. Strong for appellant, cited Caldwell v. Scott, 54 N. H. 414; Tenney v. Johnson, 43 N. H. 144; Rogers v. Batchelor, 12 Pet. 230; Sauntry v. Dunlap, 12 Wis. 364; Conroy v. Woods, 13 Cal. 631; Story on Partnership, 97; Taft v. Buffum, 14 Pick. 322; Clark v. Houghton, 12 Gray 38; Pierce v. Wilson, 2 Iowa 20.

S. E. Carter for respondent.

NORTON, J.

The appellant in this case brought his suit by attachment against the firm of Clark & Bowers, in the Buchanan court of common pleas. The attachment was levied upon certain goods and chattels, as the property of the firm. The respondent, Phelps, appeared and filed an interplea in which he claimed a portion of the property thus levied upon, under a deed of trust executed by Clark, to secure the payment of a debt which Clark owed one Cooper. The answer to this denied the right of Phelps to the property, or that Clark owed Cooper, or had ever executed a note, and alleged that the deed of trust was without consideration, was fraudulent, and was made to hinder and delay the creditors of Clark & Bowers. The venue of the cause was changed to the Andrew circuit court, where, upon a trial, judgment was rendered in favor of plaintiff, Phelps, from which the defendant has appealed to this court, motions for new trial and in arrest of having been overruled. The defendant seeks a reversal of the judgment because of the alleged errors of the court in receiving and rejecting evidence, and in giving and refusing instructions. The objection made to the reception in evidence of the deed of trust, and the return of the sheriff showing what property had been seized by him by virtue of the attachment writ, are too frivolous and technical to require further notice, than to say that they were properly overruled. Defendant offered to prove the contents and appearance of a memorandum book which had been produced by Cooper on a former trial. This was objected to on the ground that the book itself was the best evidence, and until its absence or loss, if lost, was accounted for, the evidence offered was but secondary. The court ruled properly in excluding this evidence, defendant not having laid the proper foundation for its introduction. Besides this, witnesses Grubb and Strong were allowed to state what Cooper had testified to in regard to it at a former trial of the cause, Cooper having been previously asked what he had sworn to concerning it on said trial.

The evidence in the case shows that prior to the 14th of March, 1871, Clark and Bowers were partners in conducting a saloon in St. Joseph, and that they were indebted on partnership account to defendant McNeely in the sum of $387.10. On that day Bowers sold to Clark his interest in the partnership business and property on the following terms, viz: Clark was to pay Bowers the sum of $125, and pay all the partnership debts, the principal one of which was the debt due to McNeely. The evidence strongly tends to show that it was understood at the time, and previous to the consummation of the bargain between Clark and Bowers, that Clark was to execute a mortgage on the property to secure McNeely's debt, and that McNeely was, in that event, to release Bowers and look to Clark for his debt; that Clark on the same day, and prior to the consummation of the agreement between Clark and Bowers, had told McNeely that Bowers would not sell to him unless he, McNeely, would release Bowers, and promised to execute to McNeely a mortgage if he would release Bowers, and that McNeely agreed to do this when the mortgage should be executed; that on the 14th of March, 1871, Bowers executed and delivered a writing to Clark which recited the dissolution, and the fact that he had sold his interest to Clark for the consideration of $125, and the further consideration that he should pay the partnership debts. The evidence also tends to show that at the time this agreement was made, Clark was indebted to Cooper in the sum of about six hundred dollars as his own individual private debt; that a portion of this debt was for money loaned by Clark to enable him to buy Bowers' interest in the firm, and $83 of it was applied to the payment of rent then due by the firm, and for which McNeely was bound as security. Clark swears that he told McNeely he had borrowed this money of Cooper, and...