Silver v. St. Louis

• Decision Date: 05 March 1878
• Citation: 5 Mo.App. 381
• Parties: D. H. SILVER ET AL., Respondents, v. ST. LOUIS, IRON MOUNTAIN, AND SOUTHERN RAILWAY COMPANY, Appellant.
• Court: Missouri Court of Appeals

5 Mo.App. 381

D. H. SILVER ET AL., Respondents,

v.ST. LOUIS, IRON MOUNTAIN, AND SOUTHERN RAILWAY COMPANY, Appellant.

St. Louis Court of Appeals, Missouri.

Mar. 5, 1878.

1. When a partnership is created for a joint undertaking, each partner to collect certain proceeds, and the entire receipts to be shared upon a basis fixed in the agreement, any claim preferred by one against the other for a share of proceeds unfairly withheld is the proper subject for the taking of an account, to ascertain the various items of receipt and disbursement by either partner, to compare them together, and strike the proper balance. But if the parties themselves have cast up the items, and agreed upon the state of the account and the resulting balance either way, there is no further account to be taken, unless upon a suggestion of fraud, mistake, or omission, operating to falsify their conclusion; and the court cannot interfere with the result thus settled by the parties.

2. In such a settlement, plaintiffs, in anticipation of profits on freights, made advances to defendant; but, owing to the destruction of the cargo, no such profits were realized. Defendant denied the partnership. The issue of fact raised involves no question of account. Defendant is liable to plaintiffs for the amount so advanced, or for nothing, as well as for one-half the proceeds of certain other freights included in such settlement. The prayer of the petition was for an accounting, but as the character of the claims was such that they might be prosecuted in actions for “money had and received,” and “account stated,” the prayer cannot be considered as modifying the character of the demands. Held, that the issues in this case were properly triable by a jury, and that the case was not one for reference, or triable by the court.

3. Where one party to an alleged contract made by its agent denies the contract, and then introduces the agent to prove what the contract really was, such party will not be heard to deny the agent's authority to make any contract whatever.

APPEAL from St. Louis Circuit Court.

Affirmed.

THOROUGHMAN & WARREN, for appellant: Upon the pleadings in this case, under the Practice Act, this cause was triable only by the court, and could not be tried by a jury, even by consent.--Wag. Stat. 1041, secs. 12, 13; 2 Nash's Pl. & Pr. 364; Bray v. Thatcher, 28 Mo. 133; Cowan v. Sellew, 28 Mo. 330; Morris v. Morris, 28 Mo. 117; Hunter v. Whitehead, 48 Mo. 124; Meeks v. Senden, 54 Mo. 130. Principal and agent.-- Coal, etc., Co. v. Railroad Co., 35 Mo. 85.

A. W. SLAYBACK, for respondents: Where the merits of the case have been fairly placed before the jury, an appellate court will disregard any informality in making up the issue.-- Darby v. Charless, 13 Mo. 600; Daily v. Houston, 58 Mo. 366. Although an account must always be taken of the partnership affairs before any judgment can be rendered in favor of one partner on accounts growing out of the joint interests, yet one partner may sue another, at any time, for a breach of the covenants in a partnership agreement.-- Stone v. Wendover, 2 Mo. App. 247; Buckner v. Ries, 34 Mo. 357; Byrd v. Fox, 8 Mo. 574. If the petition sets forth a good cause of action at common law, other irrelevant allegations may be disregarded, or stricken out as surplusage.-- Garner v. Railroad Co., 34 Mo. 235; Clemens v. Collins, 14 Mo. 604. A petition stating such facts as show a right of recovery in the plaintiff will be sufficient, although the facts are not so stated as to show a right of recovery in any of the common-law forms of action.-- Ahern v. Collins, 39 Mo. 145; Ladd v. Clark, 42 Mo. 519. The character of a petition is not always determined by the relief it prays for. The court may grant any relief consistent with the case, and embraced within the issues.--Wag. Stat. 1054, sec. 12; Northcraft v. Martin, 28 Mo. 469; Easley v. Prewitt, 37 Mo. 361; Corning v. Railroad Co., 48 Mo. 512; The State v. Randolph, 26 Mo. 213; Hug's Administrator v. Van Burkleo, 58 Mo. 203. All that portion of the prayer not warranted by the petition is a nullity, and should be treated as surplusage.-- McGlothin v. Hemerey, 44 Mo. 351.

LEWIS, P. J., delivered the opinion of the court.

The petition states, in effect, that in January, 1871, the plaintiffs were owners of the steamboat T. L. McGill, and common carriers, the defendant being at the same time a common carrier by railway between the city of St. Louis and Belmont, on the Mississippi River; that the McGill being at Belmont, with a cargo from New Orleans for St. Louis, it was agreed between the parties that the defendant would there receive and transport said cargo to its destination, and would also carry from St. Louis to Belmont about eight hundred tons of freight, to be shipped on the McGill for sundry points on the river south of Belmont; that for the upward transportation there was to be an equal division between plaintiffs and defendant of the freight-money, all of which was to be first collected by defendant; that for the downward transportation a scale of through rates was agreed upon, which rates were to be divided between the parties in certain ratios then fixed, and applied to the various articles of freight; the downward freights for the whole trip were to be first collected by the plaintiffs, and the defendant's interest therein was made dependent upon the fact of such collections; that the upward transportation having been completed, and the downward cargo having been received by the McGill, the agents of the parties, respectively, entered into a computation of the probable results of the joint enterprise, assuming that all the freights, both ways, would be realized; that it was thus found that the plaintiffs would collect $2,562 more than their share of the entire proceeds; whereupon the plaintiffs' agent, in excess of the authority vested in him, and without the knowledge or consent of the plaintiffs, drew a sight draft upon plaintiffs' local agents in New Orleans, in favor of defendant, for the said sum of $2,562, and delivered said draft to defendant, which afterwards collected the same; that, while making her downward trip, the steamboat was, with all her cargo, destroyed by fire, so that nothing was ever collected for the freights thus to be earned. The petition further states that the defendant collected for the upward freights the sum of $3,000, whereof the plaintiffs were entitled to one-half; that defendant has paid them $500 on that account, but refuses to account for or pay the remainder; that plaintiffs have demanded of defendant a settlement and division according to the terms of their agreement, but defendant refuses to so settle or divide, or to restore to plaintiffs the amount of the draft so erroneously drawn and paid. The prayer of the petition is, that the defendant “may be ordered and adjudged to come to an account touching said matter; and that, in case a balance should be found in favor of said plaintiffs, a judgment may be rendered therefor against the defendant in the sum of $3,562, with interest and costs, and for all further relief.”

The answer denies in detail all the terms of the alleged agreement as described in the petition. It admits the facts of the transportation both ways as stated, and the collection by defendant of the upward freights, but without stating their amount. It charges that the transportation from St. Louis to Belmont was done at the request of plaintiffs, and on their account, whereby the plaintiffs became indebted to defendant in the sum of $4,200. It admits that there was an accounting and settling between the parties, by their respective agents, and avers that the same was final and conclusive, having no reference to the possibilities of future collections, or to any contingencies whatsoever. It denies that the settlement was based upon a joint undertaking for through transportation, or that there was any joint undertaking or enterprise whatever. It admits the making, delivery, and payment of the draft for $2,562, but denies that the plaintiffs' agent exceeded his authority therein, or that any feature of the transaction was without the knowledge or consent of plaintiffs;...