Pryor v. Kopp

• Decision Date: 17 August 1938
• Docket Number: 34373
• Citation: 119 S.W.2d 228,342 Mo. 887
• Parties: John J. Pryor v. George C. Kopp, Administrator of the Estate of Thomas P. Thomson, Appellant
• Court: Missouri Supreme Court

119 S.W.2d 228

342 Mo. 887

John J. Pryor v. George C. Kopp, Administrator of the Estate of Thomas P. Thomson, Appellant

No. 34373

Supreme Court of Missouri

August 17, 1938

Appeal from Jackson Circuit Court; Hon. Thomas J. Seehorn Judge.

Affirmed.

W O. Thomas, Charles P. Woodbury and Paul Barnett for appellant; Watson, Ess, Groner, Barnett & Whittaker of counsel.

(I) The court erred in rendering any decree, because the court had no jurisdiction of the subject matter of the suit. Ensworth v. Curd, 68 Mo. 282; Caldwell v. Hawkins, 73 Mo. 450; State ex rel. Richardson v. Withrow, 141 Mo. 69; Troll v. St. Louis, 257 Mo. 626; Hargadine v. Gibbons, 114 Mo. 561; Hargadine v Gibbons, 45 Mo.App. 460; Goodson v. Goodson, 140 Mo. 206; Leabo v. Renshaw, 61 Mo. 292; Groves v. Aegerter, 42 S.W.2d 974; Louisiana Purchase Exposition Co. v. Mueller, 173 Mo.App. 71; Ross v. Carson, 32 Mo.App. 148. (2) The court erred in holding that plaintiff was not guilty of laches. State ex rel. Polk County v. West, 68 Mo. 229; Baker v. Cunningham, 162 Mo. 134; Dexter v. MacDonald, 196 Mo. 373; Burdett v. May, 100 Mo. 13; Lenox v. Harrison, 88 Mo. 491; Goodson v. Goodson, 140 Mo. 206; Wendover v. Baker, 121 Mo. 273; Flynn v. Edwards, 36 F. 879; Etting v. Marks, 4 F. 682; Younger v. Evers, 64 S.W.2d 936; Ryan v. Gorman, 183 S.W. 594; DeManderfield v. Field, 7 N.M. 17, 32 P. 146; Hall v. Clagett, 48 Md. 223; Ryman v. Ryman's Executors, 40 S.E. 96. (3) The court erred in rendering a decree for plaintiff, because equity looks with disfavor upon suits brought after the death of the party whose estate is sought to be affected, where such suit might have been brought during the lifetime of the party acquainted with the whole business, and there was no good reason to delay suit until after the death. Dexter v. MacDonald, 196 Mo. 373; Lenox v. Harrison, 88 Mo. 491; Burdett v. May, 100 Mo. 13; State ex rel. v. West, 68 Mo. 229; McKee v. Downing, 224 Mo. 115; Younger v. Evers, 333 Mo. 931. (4) The court erred in rendering a decree for plaintiff, because the evidence of the existence of a partnership and the interest of each partner therein was neither clear, cogent, convincing nor definite. Craddock v. Jackson, 223 S.W. 924; Prasse v. Prasse, 77 S.W.2d 1001; Chapin v. Cherry, 243 Mo. 375; Miller v. Miller, 311 Mo. 110; Roark v. Pullam, 207 Mo.App. 425. (5) The court erred in rendering a decree for plaintiff, because the evidence of the existence of a partnership consisted of statements and admissions by deceased that plaintiff was his partner, and such evidence is inadmissible and is without any probative force if admitted without objection. Miller v. Miller, 277 S.W. 922; Hely v. Hinerman, 303 Mo. 147; Hely v. Hinerman, 208 Mo.App. 691; Wittling v. Schreiber, 202 S.W. 418; Ellis v. Brand, 176 Mo.App. 383; Aehle v. Brand, 176 Mo.App. 395; Roark v. Pullam, 207 Mo.App. 425. (6) The court erred in rendering a decree for plaintiff, because the evidence concerning the income and disbursements and the resulting profits and losses of the alleged partnership was neither clear, cogent, convincing nor definite. Craddock v. Jackson, 223 S.W. 924; Benne v. Benne, 56 Mo.App. 504; State ex rel. Robinson v. Trimble, 43 S.W.2d 1044; Parker v. Blakeley, 93 S.W.2d 981; Norton v. Norton, 43 S.W.2d 1024; Long v. Long, 192 S.W. 948; Bruce v. Child, 11 N.C. 381; Price v. Boyle, 287 Mo. 257; Burdett v. May, 100 Mo. 13; McKee v. Downing, 224 Mo. 115; Garnett v. Wills, 24 Ky. Law 617, 69 S.W. 695; McCauley v. Elrod, 28 S.W. 782; 1 C. J. 628; Ryan v. Gorman, 183 S.W. 594; Simpson v. Shadwell, 264 Ill.App. 480; Hall v. Clagett, 48 Md. 223; Ryman v. Ryman's Executors, 40 S.E. 96; Slaughter v. Danner, 46 S.E. 289; Fineman v. Goldberg, 329 Ill. 507, 161 N.E. 57; Oglesby v. Thompson, 51 N.E. 878; Ashley v. Williams, 21 P. 556; Lewelling's Admr. v. Lewelling, 67 S.E. 362; Rogers v. Guthrie, 264 Ill.App. 525; Ziegel v. Ziegel, 124 So. 315; Hinkson v. Irvin, 20 S.E. 849; Burgess v. Ransom, 72 Mo.App. 207; Runyeon v. Eaches, 79 Pa. S.Ct. 267. (7) The court erred in holding that the burden was on defendant to produce records showing the condition of the account as between the partners. (8) The court erred in holding that the burden of proof was on defendant to show that deceased paid plaintiff his full share of the profits of the partnership. Schnieder v. Maney, 242 Mo. 36; Sweatt v. Johnson, 122 A. 501; Iverson v. Reton, 192 Wis. 418, 211 N.W. 152; Oglesby v. Thompson, 51 N.E. 878; Ashley v. Williams, 17 Ore. 441, 21 P. 556; Pierce v. Caldwell, 162 N.W. 8; Price v. Boyle, 287 Mo. 257; McKee v. Downing, 224 Mo. 115.

Calvin, Vanderventer & Kimbrell for respondent.

(1) This action being purely of an equitable nature, the circuit court, and not the probate court, had full, complete and exclusive jurisdiction thereof. Mo. Const., Art. VI, Secs 22, 23, 34; R. S. 1929, secs. 185, 189, 209, 1938, 2046; Laws 1877, p. 229; Butler v. Lawson, 72 Mo. 227; State ex rel. Zeigenheim v. Tittman, 103 Mo. 566; Leeper v. Taylor, 111 Mo. 312, 19 S.W. 955; Estate of Grover v. Shepley, 127 Mo. 153, 29 S.W. 928; State ex rel. Bauer v. Edwards, 162 Mo. 660, 63 S.W. 388; Tuttle v. Blow, 163 Mo. 625, 63 S.W. 844; McKee v. Allen, 204 Mo. 655, 103 S.W. 76; Beckman Lbr. Co. v. Acme Harvester Co., 215 Mo. 221, 114 S.W. 1092; Chicago, B. & Q. Ry. v. Gildersleeve, 219 Mo. 170, 118 S.W. 88; In re Jarboe's Estate, 227 Mo. 59, 127 S.W. 26; State ex rel. Baker v. Bird, 253 Mo. 569, 162 S.W. 119; Troll v. St. Louis, 257 Mo. 626, 168 S.W. 167; State ex rel. Fleming v. Shackelford, 263 Mo. 52, 172 S.W. 347; Linn County Bank v. Clifton, 263 Mo. 200, 172 S.W. 388; State ex rel. Knisley v. Holtcamp, 266 Mo. 347, 181 S.W. 1007; State ex rel. York v. Locker, 266 Mo. 384, 181 S.W. 101; State ex rel. Barrett v. May, 290 Mo. 302, 225 S.W. 124; In re Sizer, 300 Mo. 369, 254 S.W. 82; State Bank of Willow Springs v. Lillibridge, 316 Mo. 968, 293 S.W. 116; Renshaw v. Reynolds, 317 Mo. 484, 297 S.W. 376; Richardson v. Palmer, 24 Mo.App. 487; State ex rel. Cantley v. Akin, 22 S.W.2d 836; State ex rel. Shartel v. Brunk, 34 S.W.2d 94; State ex rel. Nute v. Bruce, 70 S.W.2d 857; Bond v. Unsell, 72 S.W.2d 874; Johnston v. McCluney, 80 S.W.2d 903; State ex rel. Lefholz v. McCracken, 95 S.W.2d 1239. (2) Furthermore, under the Constitution of our State and the laws enacted in pursuance thereof, probate courts have no equitable jurisdiction or powers; and, therefore, cannot adjust equities between litigants. Therefore, it irresistibly and conclusively follows that our circuit courts, alone, have inherent, original and exclusive jurisdiction of equitable matters. Mo. Const., Art. VI, Secs. 23, 34; In re Glover, 127 Mo. 153, 29 S.W. 982; Orr v. St. Louis Union Trust Co., 291 Mo. 383, 236 S.W. 642; Bond v. Unsell, 72 S.W.2d 874. (3) Moreover, from time immemorial, courts of equity have exercised jurisdiction in matters involving trust relationships, matters of accounting, partnership matters, and, in fact, all matters in which an adequate remedy at law did not exist; and the rule is that, when a remedy exists in equity, a subsequent grant of a remedy at law will not oust a court of equity of its jurisdiction unless the remedy is extinguished by a direct and positive prohibitory provision in the statute. Woodward v. Woodward, 148 Mo. 241, 49 S.W. 1001; Roberts v. Central Lead Co., 95 Mo.App. 581, 69 S.W. 630; Drake v. Kansas City Pub. Serv. Co., 63 S.W.2d 75. (4) The Circuit Court of Jackson County, Missouri, as a court of equity, has jurisdiction of this action for the further reasons: (a) that the relationship which one partner sustains to another is highly fiduciary in character, and such relationship is that of trustee and cestui que trust; (b) that the action involved a complicated accounting of a very large number of important business transactions extending over a period of years; and, (c) that the plaintiff did not have an adequate remedy at law. 1 C. J. S., secs. 14, 16, 18, 19, 22, 1 C. J., 56, 57, 59, 74; 47 C. J., secs. 909, 912; 2 Story's Equity Jurisprudence (14 Ed.), secs. 895, 900, 901, 914; Mechem's Elements of the Law of Partnership, sec. 221, p. 196; Dahlberg v. Fisse, 40 S.W.2d 606. (5) The relationship which one partner sustains to another partner is so highly fiduciary in character that equity regards one as trustee and the other as cestui que trust, and, in the determination of their rights inter se, applies the doctrines and principles of equity applicable to the relationship of trustee and cestui que trust. Pomeroy v. Benton, 57 Mo. 531; Filbrun v. Ivers, 92 Mo. 388; 2 Story's Equity Jurisprudence (14 Ed.), secs. 898, 900, 901, 909, 911; Mechem's Elements of the Law of Partnership (2 Ed.), sec. 170; 1 Rowley, The Modern Law of Partnership, secs. 116, 341, 342; Guggenheim v. Guggenheim, 159 N.Y.S. 247; Stem v. Warren, 161 N.Y.S. 247; Corr v. Hoffman, 226 N.Y. 254, 176 N.E. 383; Salhinger v. Salhinger, 56 Wash. 134, 105 P. 236; Goldsmith v. Eichold, 94 Ala. 116, 10 So. 80; Lyon v. Prescott, 156 A. 679; McKibben v. Byers, 138 Kan. 216; 47 C. J., 771, sec. 209. (6) Inasmuch as the jury and the trial court found that a partnership existed as between the respondent and the deceased; and inasmuch as the referee found, upon substantial evidence, that practically all contracts done and performed by said partnership were taken in the name of the deceased, that, with few exceptions, all money therefor and all payments thereon were received by the deceased, and deposited in banks in his own name, and that the profits derived from said partnership enterprise were received by the deceased; the duty devolved upon the deceased to keep accurate books of account and to account accurately, fairly and in all particulars for all money which he received or expended, in...