Scharringhausen v. Luebsen

• Decision Date: 31 March 1873
• Citation: 52 Mo. 337
• Parties: WILLIAM SCHARRINGHAUSEN, Administrator of JOHN SCHLESACK Appellant, v. JOHANN HEINRICH LUEBSEN, Respondent.
• Court: Missouri Supreme Court

52 Mo. 337

WILLIAM SCHARRINGHAUSEN, Administrator of JOHN SCHLESACK Appellant,

v.JOHANN HEINRICH LUEBSEN, Respondent.

Supreme Court of Missouri.

March Term, 1873.

Appeal from St. Louis Circuit Court

F. & L. Gottschalk, for Appellant.

By taking the whole contract together it will be seen that the parties were tenants in common in a certain chattel; that upon the death of one of the tenants in common, his interest was to revert in his co-tenant and as the assessed value of such interest, his representatives were to receive $1,000 which said co-tenant obligates himself by said contract to pay.

Rudolph Schulenburg, for Respondent.

By the terms of the agreement it was at the election of the defendant, whether he would recover the interest of the deceased.EWING, Judge, delivered the opinion of the court.

This is an action to recover a sum of money, which is claimed to be due under a stipulation contained in articles of co-partnership, to which Schlesack plaintiff's intestate, and the defendant were parties. The cause was submitted to the Court a jury being waived, upon an agreed statement of facts, and there was a judgment for the defendant, which on appeal to the General Term was affirmed, and from which the cause is brought here by appeal. The allegations of the petition are substantially, that Schlesack formed a co-partnership with the defendant for carrying on the “flying horse business” in St. Louis; that Schlesack put into the concern $1,000 in money and his labor and attention in running the same; that by the articles of agreement entered into between them, it was provided, among other things, that in case Schlesack should die, then his interest, to-wit: the fourth part in said concern, should revert to the defendant; and he should pay therefor “to the deceased” the sum of $1,000, subject to any deduction on account of indebtedness, if any, on the part of the deceased to the concern. It was also provided, that Schlesack should have no right to sell his interest in said concern to any other person than defendant or his heirs; that Schlesack departed this life in 1870, being in no way indebted to the defendant or the concern; that plaintiff since Schlesack's death has demanded payment of said sum, and has tendered to defendant a bill of sale of the interest of the deceased in said concern, &c.

The answer denies all the material allegations of the petition, except the execution of the agreement therein referred to.

Defendant on the trial of the cause...