Russell v. Grimes
| Decision Date | 31 August 1870 |
| Citation | 46 Mo. 410 |
| Parties | WM. RUSSELL, Respondent, v. JOHN GRIMES, Appellant. |
| Court | Missouri Supreme Court |
Appeal from Fifth District Court.
Dunn & Garner, and Vories & Vories, for appellant.
Donaldson, for respondent.
Plaintiff and defendant were partners, and upon suit for a settlement of their partnership accounts the matter was referred to referees, who reported that there were debts due the firm amounting to $2,255.68, and recommended that they be divided between the partners by an impartial committee, which was done. After the division and close of the suit the plaintiff sues defendant, charging in the first count of his petition that certain notes, specifying them, were turned out to him at their face, and that he received them at said settlement for, and was charged with, the amount appearing due upon them, but that a portion of the amount so due and charged, specifying the amount upon each note, had been, without the plaintiff's knowledge, paid over to the defendant and appropriated to his own use. As the defendant demurred to the whole petition because it did not state facts sufficient to constitute a cause of action, we will first consider whether this count is sufficient to charge the defendant.
The petition, so far, does not seek to settle the partnership accounts, nor does it attack the settlement already made. It simply charges the defendant with having received money upon claims which, by the settlement, became the individual property of the plaintiff; and the plaintiff then acquired a separate property not only in the balance due upon those claims, but, as against his partner, to their full amount. It seems clear to me, then, that if the defendant had collected any portion of those claims, and had not accounted for the amount so collected in the partnership settlement, the plaintiff was entitled to it; and the prosecution of the claim does not involve any impeachment of the former legal proceedings, or any readjustment of the partnership accounts. Partners are not forbidden to sue each other at law merely because they are or have been partners, but only when the adjustment of the matter in controversy involves the investigation and settlement of the partnership accounts. (Whitehill v. Shickle et al., 43 Mo. 543.) Nor is it any reason why a recovery should not be had, that the partnership accounts have been adjusted by action; but, on the other hand, the sole right of the present plaintiff to the money so collected by defendant arises out of the judgment in that action.
Suppose, upon the settlement, there had been a division of property in specie, and a specific horse or box of goods had been turned over to the plaintiff, and he was charged with its full value, and it should turn out, when he went to take possession of the property, that it had been secretly sold and the money appropriated by the defendant. In an action to recover its value, could the defendant plead no liability because they had been partners, and because plaintiff's exclusive title to the property arose from a judgment? The District Court was right in holding that this count set forth a valid claim. (Crosby v. Nichol, 3 Bosw. 450.)
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...action between the partners, not as such but in their individual capacities. [2 Bates, sec. 868; Seaman v. Johnson, 46 Mo. 111; Russell v. Grimes, 46 Mo. 410; Stone Wendover, 2 Mo.App. 247; Howe v. Howe, 99 Mass. 71; Soule v. Frost, 76 Me. 119.] In the first of those cases it is said an act......
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...one item remaining unadjusted between them, one partner may sue his co-partners at law therefor. Buckner v. Rees, 34 Mo. 357; Russell v. Grimes, 46 Mo. 410; Bethel v. Rankin, 57 Mo. 466. Such an action also lies on the express promise evidenced by the note sued on. Crate v. Bininger, 45 N. ......