State ex rel. Bredell's Ex'r v. Baldwin

• Decision Date: 31 March 1858
• Citation: 27 Mo. 103
• Parties: THE STATE, TO USE OF BREDELL'S EXECUTOR, Plaintiff in Error, v. BALDWIN et al., Defendants in Error.
• Court: Missouri Supreme Court

27 Mo. 103

THE STATE, TO USE OF BREDELL'S EXECUTOR, Plaintiff in Error,

v.BALDWIN et al., Defendants in Error.

Supreme Court of Missouri.

March Term, 1858.

1. A surviving partner retained possession of the partnership effects and gave bond under sections 50 and 51 of the first article of the administration act of 1845 (R. C. 1845, p. 70); a settlement was made by him in the Probate Court, and an order was made by said court apportioning to the estate of the deceased partner one-half of the balance found to be in the hands of such surviving partner. Held, in an action on the bond to recover a debt due to the deceased partner for money advanced by him to the firm, that this settlement was not conclusive as against his estate as to the amount due thereto from the surviving partner, or as to the amount of assets in the hands of the latter.

Error to St. Louis Court of Common Pleas.

Smith Baldwin and John C. Bredell were partners in trade John C. Bredell died January 5th, 1853, leaving a will which was duly admitted to probate, by which Edward Bredell was appointed his executor. Said Edward Bredell received letters testamentary, dated January 15, 1853. On the 6th of April, 1853, he gave bond as surviving partner under sections 59 and 51 of the first article of the administration act of 1845 (see R. C. 1845, p. 70), and undertook the management of the partnership property. This action was brought for a breach of the condition of said bond by said Baldwin in not paying, out of the partnership effects which came into his hands as surviving partner, a debt due from the firm to said John C. Bredell, deceased.

The cause was tried by the court without a jury. Evidence was introduced tending to prove substantially the following facts: Baldwin, as surviving partner, took into his possession and under his management property of the said firm to the amount of $4,081.11; that of said property there remained in his hands, after deducting disbursements, on the 22d of March, 1856, the sum of $3,566.16. On that day Baldwin appeared in the Probate Court and exhibited his account for the final settlement of the concerns of the partnership. The following is an entry of that date in the records of said court: “Smith Baldwin, surviving partner of the firm of Bredell & Baldwin, appears and exhibits his account for the final settlement of the concerns of said co-partnership; whereupon the court examines and finds that at his last settlement with the court there was a balance against him in favor of said estate of $3,759.91; that no assets since came to his hand, and he is entitled to credits in the sum of $193.75, leaving a balance in his hands in favor of said co-partnership of $3,566.16; and the court apportions said balance as follows: To Smith Baldwin, $1,783.08; and the court set aside the order of payment made on the fifteenth of this month, and apportions to the estate of John C. Bredell deceased, $1,783.08, and orders that he pay the same without delay to the executor of said deceased, and on the production of his receipt therefor he will be finally discharged.”

The evidence also showed that at the death of Bredell the firm of Bredell & Baldwin was indebted to him in the sum of $8,297.44 for moneys advanced to said partnership in the course of its prosecution of its business, before the death of said Bredell, over and above the capital he was required to put into partnership. This sum was reduced after the death of Bredell to the sum of $5,524.50. Baldwin did not, in any account rendered by him as surviving partner, include said debt of said firm to Bredell, nor did he apply any part of the property of said co-partnership that came into his hands to the payment of said debt. Said debt still remains due and unpaid. After the commencement of this suit the defendant tendered to plaintiff the one-half of the said balance of $3,566.16, which plaintiff refused to receive.

The court ruled that the above “order of the Probate Court of St. Louis county was final and conclusive upon the said ...