Quinlivan v. English

• Decision Date: 31 March 1869
• Citation: 44 Mo. 46
• Parties: EDWARD QUINLIVAN et al., Appellants, v. EZRA O. ENGLISH, Respondent.
• Court: Missouri Supreme Court

44 Mo. 46

EDWARD QUINLIVAN et al., Appellants,

v.EZRA O. ENGLISH, Respondent.

Supreme Court of Missouri.

March Term, 1869.

Appeal from St. Louis Circuit Court.

The eleventh article of the articles of partnership referred to in the opinion of the court is as follows:

“ Eleventh.--That in case of the death of any of the said partners, violation of any of the articles of this agreement, or other dissolution of this partnership, a general account of stock shall be taken in writing, as before provided, and the balance due such deceased or outgoing partner or partners ascertained, and such balance paid such outgoing partner, or the representatives of such deceased partner, as follows: one-third of said balance in one month from such dissolution or death, and notes of the continuing partner or partners at one and two years' time for the other two-thirds; said notes to be secured by deed of trust on the property of said concern, or otherwise, as may be agreed upon, and shall bear interest at the rate of six per cent. per annum; and in case of dispute on account of the valuation of the stock of the said concern, or the fact of the violation of any of the articles of this agreement, the same shall be left to the decision of three arbitrators, one to be chosen by the continuing partner or partners, and the other by the outgoing or offending partner or partners, or the representative of the deceased partner, and the third by these two; and the valuation or decision of the majority of these three shall be final.”

The other facts material to the case are stated in the opinion of the court. See, also, same case, 42 Mo. 362.

Hogan, and Dryden & Lindley, for appellants.

I. The damage recoverable for the breach of the condition of an injunction bond is such only as is occasioned by the injunction. (2 Greenl. Ev. p. 253, § 254.) The injunction was merely in aid of the relief sought for by the plaintiffs' suit. And in so far as the injunction was hurtful to the defendant, he is entitled to recover; but in so far as the suit itself was hurtful, it is damnum absque injuria. The court, by giving the first half of the first instruction, conceded that the plaintiffs had the lawful right to sue. This much the decision of this court in the case when it was here before compelled the Circuit Court to concede; but thus far and no farther would it go. It refused to declare the legitimate and necessary result of that concession by refusing to declare that no depreciation in value of the partnership property occasioned by the suit was the subject of recovery on the injunction bond. In refusing to discriminate between injury which was the result of the action and that which was the result of the injunction, the court manifestly erred; for the latter the plaintiffs were answerable--for the former they were not.

II. The court erred in refusing the third instruction. After the dissolution of the copartnership the former partners became tenants in common of the partnership property, and none of them can do any act or make any disposition of the partnership funds in any matter inconsistent with the primary duty of them all--of winding up the whole concerns of the partnership. (3 Kent's Com. 63; Sto. on Part. §§ 322, 326.) The idea that one of the former partners may take the partnership property, and use and employ it in his own interests and for his own purposes, is unsupported by any authority; and the restraint of such use by the injunction was no infringement of his rights and no ground of damages. Damages are recoverable only where the party complaining has been deprived of some right. (State, to use of Bradshaw, v. Sherwood et al., 42 Mo. 183.)

III. The right which the law gave to the plaintiffs, to have the partnership property applied primarily to the payment of the partnership debts and liabilities (Sto. on Part. § 97), is not disturbed by the provisions of the eleventh article of the partnership agreement. That article made no provision for debts--did not contemplate a state of indebtedness by the firm. Its office was merely to furnish a rule for the distribution of the distributable property among the partners, and could only operate on the surplus after the payment of the partnership debts.

Mauro & Madill, for respondent.

I. The first instruction was in part given and in part refused. It consists of two distinct propositions, which may be conceded to be correct declarations of law in a proper case for their application. But it will be observed that, while there is testimony warranting the first proposition, there is not a word warranting the second one, or to which it could be applied. As an entire instruction, therefore, it was bad; but as it was susceptible of division without impairing the force or correctness of the first part, it was divided by the court and the first part given. If insisted on as a whole, it must have been rejected. And an examination of the record will show that the second part could not possibly have been warranted by any of the evidence given in the case.

II. The third instruction was properly refused. It is directly in the face of the decision of this court in the case when it was here before. It required the court to declare that on the dissolution of this firm the partners became tenants in common of the partnership property, and that neither of them had the right to use the property for any purpose other than in the settlement of the partnership affairs. But by the articles of copartnership, the defendant being the remaining partner and the plaintiffs the retiring or “outgoing partners,” the defendant had the right to retain the property and use it in prosecuting the business in which the firm had been engaged. There was an agreement making ample provision for this precise event, and determining definitely the rights of the parties; and this court has held that, under that agreement, the defendant was entitled to use the property as he was using it when enjoined. (Quinlivan v. English, 42 Mo. 362.)

BLISS, Judge, delivered the opinion of the court.

The plaintiffs obtained from the circuit judge an injunction against defendant as partner, and, without hearing, a receiver was appointed, who took charge of the...