Quinlan v. Keiser

• Decision Date: 31 October 1877
• Citation: 66 Mo. 603
• Parties: QUINLAN et al. v. KEISER et al., Appellants.
• Court: Missouri Supreme Court

66 Mo. 603

QUINLAN et al.

v.KEISER et al., Appellants.

Supreme Court of Missouri.

October Term, 1877.

Appeal from St. Louis Court of Appeals.

Plaintiffs and defendants engaged in the purchase and sale of whisky on joint account. Defendants did the buying. A settlement was made and the profits were divided on the basis of eighty cents per gallon as the cost of the whisky. Its actual cost to defendants was but seventy cents per gallon. This suit was brought to open the settlement and have the account re-stated. The petition charged that defendants were guilty of fraud, misrepresentation, and concealment as to the cost of the whisky. The answer denied these charges, and averred that plaintiffs, when they made the settlement, knew that it only cost seventy cents.

Martin & Lackland for appellants.

1. Respondents have no equity, having finally settled the account and got their money upon it, when, at the date of the settlement, they had knowledge of the only two matters of which they complain in this case. It has no analogy to the Pomeroy & Benton case. It is a case of settlement after actual knowledge of the matters complained of; not a reasonable opportunity to acquire such knowledge. The trial court having settled this issue of fact for appellants, this court will not disturb the finding. Sharpe v. McPike, 62 Mo. 300.

T. Z. Blakeman for respondents.

1. Appellants had a positive duty to perform towards the respondents, to-wit: The duty of making a full disclosure to the respondents of all facts within their knowledge touching the original cost of the liquors. Such duty was not discharged at any of the various accountings, including the last, and, not having been discharged, the last accounting cannot be held final and conclusive, or operate as an estoppel upon the respondents. Pomeroy v. Benton, 57 Mo. 531; Story. Eq. Jur., (Redfield's Ed.) §§ 523, 527, 528.

2. Respondents had the full right to rely and act upon the statements made to them by the appellants concerning the cost of the liquors, and to disregard contrary statements made to them by third parties; and if they did so rely and act upon such statements at the last accounting, and did disregard the statements of third parties, appellants cannot complain of respondents' conduct, or urge it against them as an estoppel. Pomeroy v. Benton, 57 Mo. 531.

3. Respondents insist that the last accounting does not bar respondent's right to recover their portion of the original overcharge on the liquors, unless respondents actually intended at the time to forego their claims thereto, and both knew and believed that such overcharge existed. Grumley v. Webb, 44 Mo. 445.

SHERWOOD, C. J.

The object, sought by this proceeding, was to have opened the settlement of an account on the ground of fraud, and to have a new account restated, &c. The referee found that defendants had been guilty of undue concealment in dealing with plaintiffs in regard to the whisky purchased on joint account, and that the...