Snorgrass v. Moore

• Decision Date: 05 April 1888
• Citation: 30 Mo.App. 232
• Parties: ISAAC SNORGRASS, Respondent, v. JOHN W. MOORE, Administrator, etc., Appellant.
• Court: Kansas Court of Appeals

30 Mo.App. 232

ISAAC SNORGRASS, Respondent, v. JOHN W. MOORE, Administrator, etc., Appellant.

Court of Appeals of Missouri, Kansas City.

April 5, 1888

APPEAL from Moniteau Circuit Court, HON. E. L. EDWARDS, Judge.

Affirmed, upon condition of remittitur, etc.

MOORE & WILLIAMS, for the appellant.

I. The account upon which this suit is founded was presented to the probate court of Moniteau county by plaintiff and rejected and the demand is res adjudicata. McKinney Adm'r, v. Davis, 6 Mo. 501; Risher v Roush, 2 Mo. 95; Railroad v. Traube, 59 Mo. 355; Broom Leg. Max. [6 Ed.] p. 247, side pages 321, 331. The plaintiff, with a knowledge of the facts relating to his claims and of his legal rights, elected his forum, chose his form of action, brought his suit at law in the probate court against the estate of Hanawalt & Company, made affidavit to his claim against that estate, produced his evidence, went into a trial upon the merits of the claims, and lost. He cannot now come into the circuit court, as a court of equity, and take a contradictory position to that upon which he based his claim in the probate court. Rogers v. Higgins, 57 Mo. 244; Thompson v. Howard, 31 Mich. 309; Embry v. Conner, 2 N.Y. 522, and cases cited. The probate court had jurisdiction of the claim as presented in that court; the question was not raised. That court gave a judgment for defendant on the ground that the estate was not liable for the indebtedness made after the partnership was dissolved.

II. The plaintiff is not entitled to a judgment against the administrator in charge of the copartnership estate. If he sold the property to the surviving partner Hanawalt, his remedy is against him. If plaintiff let Hanawalt, as surviving partner, have the property on the theory that he was still carrying on the business of the late firm, he is not entitled to a judgment against the administrator, either in law or in equity. No debts could be made against the estate after Weise died. Weise v. Moore, 22 Mo.App. 530-4; Bank v. Tracy, 77 Mo. 595; Bredow v. Mut. Sav. Inst., 28 Mo. 181. Plaintiff was bound at his peril to ascertain Hanawalt's authority in continuing the business. Smith, Adm'r, v. Bank, 11 Otto [U. S.] 320, 334; Burwell v. Mandeville, 2 How. [U. S.] 560.

III. Plaintiff seeks to recover his entire demand against an insolvent estate, as a preferred creditor. This account covers many transactions and a considerable period of time. He let Hanawalt have property with full knowledge of all the facts connected with his manner of carrying on the business. Whether the conduct of plaintiff was the result of negligence, want of diligence or other cause, equity will furnish him no relief. Rend v. Hoyt, 13 Pet. 263, 269; Broom Leg. Max. [6 Ed.] pp. 212, 217, side pages, 281, 282.

IV. Had plaintiff brought suit on this account against Hanawalt prior to the administration of defendant, his remedy would have been at law, and not in equity, to follow the special proceeds of his wheat. How can he have any preferred legal rights against the estate? There are no elements of a trust in the case. The property was sold by verbal contract on time, with no agreement for a lien reserved either on the wheat or its proceeds. Plaintiff's own evidence does not support the allegations in his petition, setting up a claim for a lien.

V. The judgment of the lower court was not only for the wheat sold by plaintiff to Hanawalt, but also for other items amounting to $100.70. Plaintiff does not claim any understanding except as to the wheat. This alone should reverse the case.

V. The evidence of witness McCarty was improperly admitted; it was entirely hearsay. Fougue v. Burgess, 71 Mo. 389; Coble v. McDaniel, 33 Mo. 360.

DRAFFEN & WILLIAMS and HAZELL & PASH, for the respondent.

I. The appellant misconceives this action. The respondent does not seek to establish this as a demand against the partnership estate of Hanawalt & Company, as a preferred creditor, or otherwise. It is an equitable proceeding, to reach a fund wrongfully mingled with the partnership assets by defendant, and which was pledged for the payment of plaintiff's debt.

II. It needs no citation of authorities to show, that, after the death of one partner, the survivor could not create a debt that would bind the partnership. No such question arises in this case.

III. " The first fact apparent from this record is, that the property in question never belonged to the partnership estate of Hanawalt & Weise. It was not in existence at the time of the death of Weise; nor was it the product of any debt or money of the estate." The defendant has no right, title, or interest in said funds. He was a mere wrongdoer in taking the same. Weise v. Moore, 22 Mo. 530.

IV. If the defendant had not wrongfully assumed to collect this money, the plaintiff's claim would have been settled therefrom. The fact that he has improperly mingled it with the partnership estate will not prevent the plaintiff from following it. Stoler v. Coates, 4 West. Rep. 600; Thompson v. Savings Inst., 6 Cent. Rep. 328; Harrison v. Smith, 83 Mo. 240.

V. The plaintiff, having furnished the items set out in the petition, upon a contract, that he was to be reimbursed out of the proceeds of his wheat, and which proceeds are now in defendant's hands, ought, in equity, to be entitled to have said fund so applied. Husted v. Ingraham, 75 N.Y. 251; 3 Pom. Eq. Jur., sec. 1235; Cooper v. Douglass, 44 Barb. 409. Certainly this should be so, as against one, who has no title whatever, and who is in no position to contest plaintiff's rights. Hale v. Bank, 49 N.Y. 626.

VI. It would be a strange doctrine to say, that plaintiff has no claim against the partnership estate, and yet the partnership estate can hold the proceeds of his property against his claim for the purchase money.

VII. The plea of res adjudicata cannot prevail. It is true that plaintiff, at defendant's suggestion, it seems, presented his claim for allowance against the partnership estate. The probate court properly rejected it. This judgment is a bar to any suit, at law or in equity, to establish this as a claim against said partnership estate. It is not a bar to a proceeding to reach funds that constitute no part of said partnership estate, but which were, in equity and good conscience, applicable to plaintiff's debt. Bell v. Hoagland, 15 Mo. 260.

VIII. The evidence as to the statements of Hanawalt, through whom defendant claims, was competent. There was no exception, however, to any ruling of the court as to the admission of his evidence.

IX. A court of equity may so frame its decree as to afford full relief. It is not confined to any single method of relief. Evans v. Railroad, 64 Mo. 453.

J. M. WILLIAMS, in reply.

Defendant did not wrongfully mingle any funds of respondent with the partnership assets. No pledge of any fund was made by Hanawalt, and defendant only took possession of the assets turned over to him by the surviving partner. The accounts collected were small and miscellaneous; and defendant would enquire what specific accounts are impressed with the alleged lien or trust in favor of respondent? Plaintiff sold wheat and other articles on credit to Hanawalt. He now says that he " let Hanawalt have wheat, not the other articles, with the understanding that he was to grind it and pay me out of the proceeds." There is no relation of trustee and cestui que trust, as in Harrison v. Smith, 83 Mo. 210. There was no reservation of a lien; nor was there any agreement in writing (or even by parol), to execute a mortgage, nor any attempt to give a mortgage or lien to secure the payment of the articles sold, as in the authorities quoted by respondent, of Husted v. Ingraham, 75 N.Y. 251; Hale v. Bank, 49 N.Y. 626, etc. The relation of principal and agent did not exist between Snorgrass and Hanawalt, hence the case of Thompson v. Savings Inst., 6 Cent. Rep. 328, has no application. The case of Stoler v. Coates, 88 Mo. 515, sustains the second paragraph of appellant's first point for reversal. If defendant, as administrator, has no title to the assets turned over to him as belonging to the partnership of Hanawalt & Company, the creditors of that firm would be in a bad fix indeed.

ELLISON J.

The firm of Hannawalt & Company, composed of Frank Hannawalt and H. G. Weise, owned and operated a mill in Tipton Missouri. Weise died, and, after his death, Hannawalt continued to run the mill. He made a contract with the plaintiff, by which the plaintiff agreed to furnish him wheat, to be ground in said mill, and for which he was to pay the plaintiff, out of the proceeds of the flour ground by Hannawalt in the mill. He had been carrying on business in this way for quite a while, getting wheat from plaintiff, grinding it, selling the flour, and paying plaintiff out of the proceeds. Several months after the death of Weise, defendant Moore was appointed his administrator. He also gave bond, and took charge of the partnership estate. When he took into his possession the property of the firm of Hannawalt & Company, he also took the accounts due for flour, made by Hannawalt out of wheat bought by him after the death of Weise. He collected from these accounts, and had in his hands at the time of the trial, at least five hundred dollars, derived from that source. When the defendant took these accounts, there was a balance due the plaintiff for wheat, furnished after Weise's death, and which, under the agreement between plaintiff and Hannawalt, was to be paid for out of the funds so collected and held by defendant. Hannawalt, Weise's estate, and the partnership estate are all insolvent. Plaintiff brought this suit, setting up, substantially, the foregoing facts, asking that the defendant be required to account for the...