Scott v. Caruth

• Citation: 50 Mo. 120
• Parties: CLINGAN SCOTT, ADMINISTRATOR OF THE PARTNERSHIP ESTATE OF SCOTT BROTHERS, Appellant, v. SAMUEL B. CARUTH, Respondent.
• Decision Date: 31 March 1872
• Court: United States State Supreme Court of Missouri

50 Mo. 120

CLINGAN SCOTT, ADMINISTRATOR OF THE PARTNERSHIP ESTATE OF SCOTT BROTHERS, Appellant,

v.SAMUEL B. CARUTH, Respondent.

Supreme Court of Missouri.

March Term, 1872.

Appeal from St. Louis Circuit Court.

Lubke & Player, for appellant.

Sharp & Broadhead, and T. G. C. Davis, for respondent.

BLISS, Judge, delivered the opinion of the court.

In an action on an account stated, the plaintiff cited two items: one as half of loss on potatoes and onions, $172.98, and one as half of loss on tobacco, $6,621.95, and the whole of the account was denied. The plaintiff was the only witness, and testified that all the other items of the account had been paid, and that these two were for half of the net losses upon two joint adventures; that in each of these adventures the plaintiff's firm furnished the money and made the sales, while defendant made the purchases in the one adventure of potatoes and onions, which were sent down the river, and in the other of tobacco, which was sent to New York and Europe. He testified that in each adventure the articles had been sold and the proceeds collected, and the result was a loss of twice the amount as charged in the account. The court held that the plaintiff could not recover on the pleading and evidence.

The petition is radically defective. Counsel claims that these items can be recovered in action at law, but even if his claim was admitted, the petition must show the facts, must show the adventure; that the plaintiff has settled up all its concerns, and that there has been a loss, and he should make the proper exhibits to sustain his claim. But the claim itself is erroneous.

In Massachusetts, under the common-law system of pleadings, actions at law were sustained to recover a proper proportion due from a partner after the partnership had been closed and its affairs settled without a mutual adjustment. (Williams v. Henshaw, 11 Pick. 79.) But in Missouri we have steadily adhered to the rule that unless there has been a settlement between the parties, resort must be had to the equitable side of the court. No express promise is required, but there must be an agreement as to the claims, and a promise is implied from the obligation. The matter is thus taken out of the partnership and it becomes a personal debt, without any further examination of the partnership accounts.

We use the old terms “law” and “equity” from custom and convenience, but only to indicate the different modes of trial and the kind of relief sought. It is...