Redenbaugh v. Kelton
Decision Date | 12 July 1895 |
Citation | 32 S.W. 67,130 Mo. 558 |
Parties | REDENBAUGH et al. v. KELTON et al. |
Court | Missouri Supreme Court |
1. In the contract of dissolution, the retiring partner agreed to sell to his copartner his interest in the partnership property for $500 in trade, and the balance in cash within three years, the purchasing partner to pay off the firm indebtedness as it came due and take up a certain note; and when the purchasing partner complied with the terms of the agreement, the retiring partner was to convey to him his interest in certain property. Held to constitute a sale on time, by which absolute title to the goods passed without a lien reserved.
2. Rev. St. 1889, §§ 5180, 5181, making conditional sales of property void as to creditors or subsequent purchasers unless the same are in writing and recorded, are applicable to sales between partners.
3. Where money is advanced by one partner to the partnership, and to reimburse him therefor another partner borrows money on his own note, the note does not become the obligation of the firm unless expressly assumed by it.
4. A retiring partner, selling and transferring all his interest in the partnership estate to his copartner, who assumes open and exclusive possession and treats it as his sole property, has no lien on the partnership property for the unpaid purchase price in the hands of a bona fide purchaser from such copartner.
5. In an action by a firm against a third person to recover an interest in firm property alleged to have been wrongfully sold by one of the partners, the admission in evidence of a judgment of dissolution in an action between the partners is harmless where there is other evidence sufficient to show such dissolution.
Appeal from circuit court, Newton county; J. C. Lamson, Judge.
Action by A. G. Redenbaugh and W. H. Collings against Moses W. Kelton and W. C. Kelton, as the Kelton Mercantile Company, to set aside as fraudulent the sale of partnership property on which a lien was claimed. From a judgment for defendants, plaintiff Redenbaugh appeals. Affirmed.
N. F. Heitman and Geo. Hubbert, for appellant. Cloud & Davis, for respondents.
This is an appeal from the circuit court of Newton county. On the 12th of May, 1893, a demurrer was sustained to the original petition in the case, and on that day an amended petition was filed, upon which the cause was tried. The petition alleges substantially these facts: That defendants are and long have been copartners; that on the ____ day of ____, 1891, plaintiffs were partners under the name of "W. H. Collings & Co."; that said partnership was organized for the purpose of carrying on a general retail store, to buy at wholesale and sell at retail in the ordinary course of business, at least until Redenbaugh should be fully reimbursed for his capital invested, which amounted to $5,000, which amount he avers Collings agreed to see he should receive out of the proceeds of the business in the ordinary course of selling; that their place of business was Noble, Ozark county; that their stock consisted of general merchandise usual in a country store, and was owned by them in equal shares; that on the ____ day of ____, 1891, Collings, without authority of Redenbaugh and without his knowledge, and to defraud Redenbaugh and convert the said stock to his own use, sold and delivered the whole of said stock to defendants Kelton, and applied the proceeds to his (Collings') use, in pursuance of a fraudulent conspiracy with defendants; that the stock so converted was worth $6,000; that said sale was wholly without the authority of Collings and the scope of the said partnership, and was made in pursuance of a collusive agreement with defendants; that defendants knew said goods were the property of the firm of Collings & Co., and that said sale was beyond the scope of said partnership and contrary to the agreement between Redenbaugh and Collings, and that Redenbaugh had never been paid for his interest in the same; that defendants conspired with Collings for the purpose of cheating Redenbaugh out of his share, and converted the goods to their own use and to aid Collings to defraud Redenbaugh; that the partnership was not in debt to any other person, and this suit was brought solely to protect Redenbaugh; that Collings is joined simply to avoid a demurrer for nonjoinder, — and concludes: "Therefore, by reason of the premises, this plaintiff has been damaged in the sum of $6,000, for which said sum, and for costs herein, plaintiff asks judgment." To this petition defendants filed a general denial. Defendants filed an affidavit denying the partnership of Redenbaugh and Collings. A jury was waived, and the cause submitted to the court, which found for defendants, and rendered judgment accordingly. Before judgment, at the request of plaintiff Redenbaugh, the court made a finding of facts, which was as follows:
To which said conclusions of facts the plaintiff at the time then and there excepted, and still excepts, and on the 17th day of June, 1893, the plaintiff submitted to the court his statement of facts, and moved the court to...
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