Price v. Hunt

• Decision Date: 28 February 1875
• Citation: 59 Mo. 258
• Parties: THOMAS J. PRICE, Appellant, v. JAMES T. HUNT, Respondent.
• Court: Missouri Supreme Court

59 Mo. 258

THOMAS J. PRICE, Appellant,

v.JAMES T. HUNT, Respondent.

Supreme Court of Missouri.

February Term, 1875.

Appeal from Carroll Circuit Court.

L. H. Waters, for Appellant.

Ray & Ray, for Respondent.

VORIES, Judge, delivered the opinion of the court.

This action was founded on a negotiable promissory note executed by the defendant and made payable to one W. H. Mitchell, and was for the payment of $160, twelve months after date and dated the 4th day of February, 1870, and assigned to plaintiff before maturity.

The defendant, as a defense to the action, charged that at the time of the execution of the note, said W. H. Mitchell, one T. C. Kendrick and plaintiff were partners, engaged in the selling of a patent right seed sower; that said note, although executed and delivered to said Mitchell, was in fact the property of said partnership; that the sole and only consideration of the note was the sale by said partnership to the defendant of the exclusive right to sell said patent right in Livingston and Caldwell counties; that after the execution and delivery of said note, defendant fully paid off and discharged the same to the said Kendrick; and that the proceeds of said payment went into said partnership funds, and the said partnership still existed; that said Kendrick, when said note was paid, promised to obtain the note and deliver it to defendant; that the fact that said note was partnership property was known to plaintiff; that plaintiff was notified of the payment of said note and requested to deliver the same to defendant, which he failed to do. Wherefore, defendant denies that said note is still due and unpaid, or that the plaintiff ought to recover the same. But defendant prays that said note may be delivered up to the defendant by order of the court, and that defendant may have such other judgment, etc.

The plaintiff filed a replication to said answer, in which he specifically denied all of the affirmative or material allegations in the answer, and averred that the note was sold and assigned to him before maturity, for a valuable consideration and without any notice of any defense to the note on the part of the defendant as against the payee therein or otherwise.

A trial was had before the court without the intervention of a jury.

On the part of the plaintiff, the note and endorsement were read in evidence. The defendant was then examined on his own part, and testified to the following effect, that he gave the note sued on to W. H. Mitchell, for Price's patent right seed sower, for Livingston and Caldwell counties; that Price was the patentee and maker of the machines; that he afterwards paid T. C. Kendrick the note, which payment was made as follows: Kendrick claimed to be a partner of Mitchell and Price in the note, and witness had sold five counties for T. C. Kendrick and was to have five other counties for his pay. In September, following the date of the note, Kendrick and defendant agreed that defendant should have the note now sued on, for his pay, instead of the five counties. The note was not in Kendrick's possession at the time. The defendant had sold the five counties before said agreement with Kendrick and they were sold for Kendrick. Mitchell is reported to be dead.

T. C. Kendrick was next introduced as a witness for defendant, who testified that he and plaintiff and W. H. Mitchell, in December, 1869 or 1870, went into partnership. The partnership was formed in the State of Illinois, at the plaintiff's machine shop in Macomb, where plaintiff resides. The partnership agreement was reduced to writing, and the writing, witness thought, was among Mitchell's papers. Here the plaintiff objected to any testimony in relation to the terms of said partnership or the contents of said writing. The objection was overruled by the court and the plaintiff at the time excepted. Whereupon, said witness was allowed, against plaintiff's objection, to testify that by the terms of said partnership, Mitchell and witness were to travel and sell territory and furnish machines, to be made and furnished by plaintiff; and that after deducting the cost of sales, traveling expenses and four dollars for each machine, the witness and Mitchell were to have two-thirds of the net profits for their pay. Witness never saw the note sued on until the suit was brought on it. It was also stated by said witness, that the partnership spoken of by him was dissolved in the spring after the note was given, and that it was in the next September that the arrangement was made to settle the note as detailed in defendant's evidence; that Mitchell and witness traveled over the country as agents of plaintiff until the spring of 1870, in selling said patent right; that they sold under power of attorney from plaintiff; that Kendrick had paid Mitchell for his part of the note, by crediting his account with the amount.

There was some other evidence tending to show that Kendrick had an interest in the note, but the foregoing is, substantially, the evidence offered by defendant.

The plaintiff then introduced evidence tending to prove that he was never in partnership with Kendrick and Mitchell, or either of them, and that he purchased the note sued on from Mitchell for value, without any notice of any defense...