Short v. Taylor

• Decision Date: 09 February 1897
• Parties: Short v. Taylor, Appellant
• Court: Missouri Supreme Court

38 S.W. 952

137 Mo. 517

Short v. Taylor, Appellant

Supreme Court of Missouri, First Division

February 9, 1897

Appeal from Saline Circuit Court. -- Hon. Richard Field, Judge.

Affirmed.

Draffen & Williams and Samuel Boyd for appellant.

(1) The judgment should be reversed because the finding of facts is contrary to the evidence in the case. Blount v Spratt, 113 Mo. 48; McElroy v. Maxwell, 101 Mo 294. (2) The judgment in the case of Taylor v. Short rendered on stipulation of the parties is not res judicata. It certainly does not conclude the defendant from denying that the mill property belonged to him and plaintiff as partners. Freeman on Judgments [3 Ed.], secs. 257, 258. (3) There was manifest error in holding that the mill property belonged to a partnership composed of the plaintiff and defendant. Harding v. Wright, 119 Mo. 1. (4) The plaintiff will not be permitted to claim that it was understood and agreed that his notes were not to be paid according to their tenor and effect, and that his deed of trust was not to be operative, and that the deed to him for the mill property was not to be treated as valid, by reason of a parol agreement alleged to have been made between him and the defendant prior to the execution of said instruments. This, however, must be the result if the mill property is held to belong to a partnership composed of the plaintiff and the defendant. Jones v. Shepley, 90 Mo. 307; Jones v. Shaw, 67 Mo. 667; Smith's Adm'rs v. Thomas, 29 Mo. 307. (5) The judgment of the court below is erroneous in requiring the defendant to take the mill, at price fixed thereon by the referees and to pay to plaintiff one half of such appraised value. If the mill belongs to the partnership, the defendant can not be required to purchase it and to pay one half of the appraisement made by the referees. 2 Bates on Partnership, 974. (6) The evidence in this case shows conclusively that in the case of W. M. Taylor v. L. D. Short, both the issues and the parties were the same as in this case. The court had jurisdiction, and it was the duty of the court to determine all the issues in the cause and having made a final judgment therein, defendant insists that all the issues in that case and in this are res adjudicata. See Herman on Estoppel, pp. 133, 297, 561; Shelbina v. Parker, 58 Mo. 329; Dobbs v. Ins. Co., 72 Mo. 191; Kelly v. Hurt, 74 Mo. 571; Caldwell v. White, 77 Mo. 473; Chouteau v. Gibson, 76 Mo. 47; Mason v. Summers, 24 Mo.App. 182.

Samuel Davis and Leslie Orear for respondent.

(1) The plea of res judicata made by defendant's answer can not be invoked to the extent asked by him as a bar to plaintiff's right for an accounting between himself and his copartner. (2) The stipulation above referred to having submitted the question of the existence of partnership between the parties and there being no allegations in the defendant's answer in that case that would authorize affirmative relief, and no dissolution of the partnership being involved, and all other questions aside from the existence of the copartnership having been expressly withdrawn from the consideration of the jury and court by agreement of the parties, it necessarily follows that the fact of partnership constituted the only matter in issue. (3) It is not necessary for one partner when sued by his copartner at law to set up as a defense to such suit, facts which would work a dissolution of the copartnership, nor to dissolve the copartnership. He may plead that the note sued on is a partnership obligation and resist payment of his part on that ground alone, and the plaintiff could not recover in that form of action, and the partner may thereafter sue for a dissolution of the partnership and for a settlement of the accounts. Black on Judgments, secs. 614, 615 and 705; Hickerson v. Mexico, 58 Mo. 61; Chouteau v. Gibson, 76 Mo. 38; Cockrell v. Stafford, 102 Mo. 57; Palmer v. Husey, 87 N.Y. 303; McIntyre v. Storey, 80 Ill. 127. (4) The estoppel does not depend upon technicalities, but rests in the broad principles of justice, and extends no further than the court actually undertook to decide. Hickerson v. Mexico, 58 Mo. 61; Packet Co. v. Sickles, 24 How. (U.S.) 533; Chrisman v. Harman, 26 Am. Rep. 387; 21 Am. and Eng. Ency. of Law, p. 192; Ibid., p. 199, div. 3. (5) It was, therefore, rightly concluded by the referees under the evidence that the mill property was partnership property on the footing of personal property, in an equitable adjustment of the affairs of the partnership in their accounting. Crow v. Drace, 61 Mo. 227; Willett v. Brown, 65 Mo. 138; Spalding v. Wilson, 80 Ky. 589; Fairchild v. Fairchild, 64 N.Y. 471; Paige v. Paige, 71 Iowa 318; Way v. Stebbins, 47 Mich. 296; Duhring v. Duhring, 20 Mo. 175; Delmonico v. Guillinane, 2 Sandf. Chy. 366; 1 Parsons, Cont., pp. 149, 150, and notes; Bates on Partnership, sec. 281. This contract is not influenced by the statute of frauds as contended for by appellant. Bates, Partnership, sec. 301.

Barclay, P. J. Macfarlane, Robinson, and Brace, JJ., concur.

OPINION

Barclay, P. J.

The case is for an account between the parties to the suit as partners and for judgment for plaintiff's share. The defenses consist of a denial of the alleged partnership and a plea of a former adjudication of plaintiff's claim.

The cause went (without objection) to referees for trial of all the issues and a statement of the account.

The plaintiff's testimony tended to prove that in 1882 the defendant, Mr. Wm. M. Taylor, and Mr. Holmes were partners and owners of a flour mill in Saline county; that about the last of February of that year, plaintiff, Mr. L. D. Short, purchased the interest of Holmes, and entered into equal partnership with defendant in the same enterprise. The former owners made a deed of the property outright to plaintiff, who gave back to Mr. Taylor three notes, of five hundred dollars each, payable at intervals of a year, and secured by deed of trust on the mill property.

One of the terms of the partnership, according to plaintiff's version, was that the business should go forward in the name of plaintiff, and that the defendant should not be known to the public as a partner.

The defendant denies the partnership. But (for reasons that will appear later) it is not necessary to set forth the evidence on either side bearing on that issue.

The mill was conducted for a number of years under the arrangement described by plaintiff. During that time a variety of monetary dealings occurred between plaintiff and defendant as well as between plaintiff and outside parties treating with him in regard to the firm's affairs.

In 1888 defendant brought two actions on the proceedings of which the plea of res judicata in this case is based.

The first of those actions was begun by Mr. Taylor against Mr. W. H. Short, a brother of plaintiff. W. H. had signed a note for $ 350 along with Mr. Taylor, as ostensible surety for the maker, L. D. Short. Mr. Taylor had been obliged to pay the note, and the action mentioned was brought to recover of Mr. W. H. Short, as co-surety, one half of the sum so paid by Mr. Taylor. The defense interposed to that action was that Messrs. Taylor and L. D. Short were partners at the time when the note was given and that it was executed for account of the firm. That defense was denied. Defendant also set up a counterclaim.

Before this action came to trial, a stipulation was filed in the other (the second) case by which it was agreed that the latter should abide the result of the first. The second action was directly between Mr. Taylor, as plaintiff, and Mr. L. D. Short, as defendant. It was intended to recover of the latter the money which had been paid by Mr. Taylor to take up the same note that figured in the other action (wherein Mr. W. H. Short was the defendant). The answer in the second action (as in the first) charged that the note was really a firm note of plaintiff and defendant, though issued in the name of Mr. L. D. Short alone. The answer further went on to a close as follows:

"At the time said note was given, plaintiff and defendant were partners engaged in running a mill at Herndon, Saline County, Mo., and in buying grain for the purpose of making flour and meal for sale, and that said note was given for partnership purposes and for money used by them in carrying on the business of said partnership; that there has never been a settlement of the affairs of said partnership between plaintiff and defendant, but that upon a full settlement of said partnership, plaintiff will be largely indebted to this defendant; that on account of the number of transactions to be settled and the various matters to be examined, this defendant is unable to here state an account between himself and plaintiff.

"Defendant therefore prays this Court to appoint a referee to state an account between plaintiff and defendant and to settle said partnership, and for all such other orders as may be necessary in the premises."

To this answer there was a reply, denying generally the new matter and especially the alleged partnership. The latter denial was verified.

The first of these actions resulted in a verdict and judgment for defendant, including an affirmative finding for defendant on the counterclaim.

Then the stipulation in the second case was called into play, and the following judgment thereon was rendered, February 16, 1889, viz.:

"William M. Taylor, plaintiff, vs. L. D. Short defendant. To wit: Now come the parties hereto, by their respective attorneys, and whereas the verdict and judgment is in favor of the defendant in the case of Wm. M. Taylor, plaintiff, against W. H. Short, defendant, therefore, in accordance with said verdict and judgment, and by virtue of the stipulation heretofore...