The Evangelical Synod of North America v. Schoeneich
| Decision Date | 20 April 1898 |
| Citation | 45 S.W. 647,143 Mo. 652 |
| Parties | The Evangelical Synod of North America v. Schoeneich, Administrator of S. H. Merten & Company, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Charles Circuit Court. -- Hon. E. M. Hughes, Judge.
Affirmed.
C Daudt for appellant.
(1) The court admitted improper evidence offered by plaintiff. Upon dissolution of a partnership the power of partners to bind the firm, by contract or admissions, ceases. Greenl. Ev sec. 112; Story on Part., secs. 107, 323; Brady v Hill, 1 Mo. 315; Pope v. Risley, 23 Mo. 185; Dowzelot v. Rawlings, 58 Mo. 75; Fowler v. Helm, 29 Mo. 324; Little v. Ferguson, 11 Mo. 598. (2) The plaintiff is bound by the judgment of the probate court, on the demand presented by Rev. Wobus, their treasurer. Nansen v. Jacobs, 93 Mo. 331. Wobus was competent to sue in his own name. R. S. 1889, sec. 1191; Rogers v. Gasnell, 51 Mo. 466; Snider v. Exp. Co., 77 Mo. 523. (3) The alleged trust fund of plaintiff is incapable of ascertainment; it can not be traced either in its original form or in its substituted form. The trust funds can not be identified or traced, hence there is no lien in favor of plaintiff. 2 Story, Eq., sec. 1259; Buck v. Ashbrook, 59 Mo. 200; Dailey v. Dailey, 125 Mo. 96; Huettemann v. Viesselmann, 48 Mo.App. 590; Phillips v. Overfield, 100 Mo. 474; Englar v. Offiutt, 70 Md. 78; Slater v. Oriental Mills, 27 A. 443; Silk Co. v. Flanders, 87 Wis. 241; In re Bank, 87 Wis. 378; Burnham v. Barth, 89 Wis. 367; Lathrop v. Bampton, 31 Cal. 17; Little v. Chadwick, 151 Mass. 109; Cavin v. Gleason, 105 N.Y. 256; Bank v. Armstrong, 39 F. 684; Bank v. Goetz, 138 Ill. 127; Wetherell v. O'Brien, 140 Ill. 146; Ass'n v. Jacobs, 141 Ill. 261; Calhoun v. Bank, 20 S.E. 153; Thompson's Appeal, 22 Pa. St. 16; Hopkin's Appeal, 9 A. 867; Carmany's Appeal, 166 Pa. St. 622; Peoples' Bank's Appeal, 93 Pa. St. 107; Neely v. Rood, 54 Mich. 134; Sherwood v. Bank, 53 N.W. 922; Shields v. Thomas, 71 Miss. 260; Bank v. Ins. Co., 104 U.S. 54; Ellison v. Moses, 95 Ala. 221; Goldthwaite v. Ellison, 99 Ala. 497; Bank v. Dowd, 38 F. 172; Elev. Co. v. Clark, 53 N.W. 175.
Theodore Bruere & Son for respondent.
(1) There is nothing in the point made by appellant that the court admitted improper evidence. First. The record shows that appellant only objected to the introduction of the affidavit; the court never ruled on this objection, and as appellant brought out the same facts contained in the admission by his own witnesses, this court can not ascertain from the record whether the trial court admitted or rejected this evidence. R. S. 1889, sec. 2302; Burdoin v. Trenton, 116 Mo. 375; St. Louis v. Sieferer, 111 Mo. 665; Danforth v. Railroad, 123 Mo. 197; Smith v. Dunklin Co., 83 Mo. 195; Connelly v. Ben. Soc., 43 Mo.App. 286; Fairgrieve v. Moberly, 29 Mo.App. 149. Second. The affidavit of S. H. Merten and W. Hackmann was competent evidence. (2) The relation between the plaintiff and S. H. Merten & Company was that of cestui que trust and trustee. Bank v. Ins. Co., 104 U.S. 67; Harrison v. Smith, 83 Mo. 210; Stoller v. Coates, 88 Mo. 514; Leonard v. Latimer, 67 Mo.App. 138; Brick Co. v. Schoeneich, 65 Mo.App. 283; Bank v. Sanford, 62 Mo.App. 296; Union Society v. Mitchell, 26 Mo.App. 206; Cart Co. v. Stephens, 32 Mo.App. 341. (3) The plaintiff is not bound by the allowance of the probate court in favor of Mr. Wobus personally. First. Mr. Wobus acted without authority from plaintiff when he had the claim allowed. Freeman on Judg. [3 Ed.], sec. 164; Middleton v. Railroad, 62 Mo. 579. Second. The plea "res-adjudicata" is not sustained by the evidence. Free. on Judg. [3 Ed.], sec. 154. (4) The trust money of plaintiff was mixed wrongfully with the funds of the firm of S. H. Merten & Company, and went into its business operation a very short time before the dissolution of the firm, and while not traceable to any particular asset of the firm, it went into its general assets and to the extent of $ 3,000 increased the same. The firm thus having received the benefit of the unlawful conversion, equity charges its assets with the amount of the converted fund as a preferred demand. Harrison v. Smith, 83 Mo. 210; Stoller v. Coates, 88 Mo. 514; Munro v. Collins, 95 Mo. 33; Snorgrass v. Moore, 30 Mo.App. 232; Cart Co. v. Stephens, 32 Mo.App. 346; Clark v. Bank, 57 Mo.App. 281; Hockensmith v. Hockensmith, 57 Mo.App. 378; Bank v. Sanford, 62 Mo. 394; Brick Co. v. Schoeneich, 65 Mo.App. 283; Leonard v. Latimer, 67 Mo.App. 138; Bank v. Ins. Co., 104 U.S. 67; Peak v. Ellicott, 30 Kan. 156; Thompson v. Bank, 8 A. 97; Plow Co. v. Lamp, 45 N.W. 1049.
This is a proceeding in equity by which it is sought to charge the partnership estate of S. H. Merten & Company with a lien amounting to $ 3,000 and interest, alleged to have been plaintiff's money, and to have been converted by said company.
The firm of S. H. Merten & Company was composed of Stephen H. Merten, John F. Hackmann and William Hackmann. The firm did a general milling business for about twenty years in the city of St. Charles, and was dissolved by the death of John F. Hackmann on the eighteenth day of September, 1893. On the twenty-seventh of September, 1893, the defendant, Henry J. Schoeneich, took out letters of administration on the partnership estate, and two days thereafter took out letters of administration on the individual estate of said John F. Hackmann. The partnership estate proved to be insolvent, paying not more than twenty-five cents on the dollar of its indebtedness. Both Stephen H. Merten and William Hackmann are insolvent; John F. Hackmann died insolvent. The plaintiff is a corporation duly incorporated under the laws of Missouri. Ever since 1887, one Rev. Reinhard Wobus who had charge of a congregation of the Evangelical Church at St. Charles, Missouri, was the treasurer of said synod up to the time of his death, November 5, 1894; and as such was the custodian of the funds and moneys belonging to said corporation. During the time of his service as treasurer said Wobus received in his capacity as such, various sums of money for said corporation, which he deposited with Stephen H. Merten & Company; this he did without the knowledge of the president of the synod who was during most of the time a resident of Burlington, lowa. The firm knew that the funds deposited by Wobus with it did not belong to him, but were the funds of the plaintiff, and were only held by him as its treasurer. Most of the money left by Wobus with S. H. Merten & Company consisted of checks for small amounts, payable to him individually as treasurer, which said firm deposited on its own account and to its credit in the Union Savings Bank of St. Charles. No interest was ever paid by the firm on these deposits and whenever Wobus needed the money it was returned to him. On the twenty-fourth of August, 1893, there were $ 3,300 in the hands of the firm thus deposited, of which Wobus on the fourteenth day of September, 1893, received $ 300. When, however, he demanded the balance the firm was unable to return it for the reason that they had used it in their business.
Without the knowledge or consent of the president or other executive officers of the German Evangelical Synod of North America, Mr. Wobus, on November 13, 1893, went before the probate court of St. Charles county, and had said $ 3,000 allowed in his own name, against the partnership estate of Stephen H. Merten & Company, and $ 300 in offset. Nothing was ever paid on this allowance and as soon as the president of the synod learned of it he denied that the synod had anything to do with it, and that Wobus had any authority to act for it in respect to said allowance, and soon thereafter instituted this suit. There was a decree in favor of plaintiff for $ 3,000 with interest from the time of the institution of this suit, which was made a special lien upon the assets of the firm of Merten & Company in the hands of the administrator. Defendant in due time filed his motion for a new trial which being overruled he saved his exceptions and brings the case here by appeal for review.
I. During the trial plaintiff read in evidence over the objection and exception of defendant the ex parte affidavit of S. H. Merten and William Hackman, with respect to the transactions out of which this litigation arose, in which it was stated in substance among other things that Mr Wobus never advanced or loaned any of the moneys in question to the firm of S. H. Merten & Company but that said firm always deposited said moneys as requested by him, in the Union Savings Bank, until during the few last months, when said moneys were used in the business of said firm, without his knowledge or consent, so that the firm of S. H. Merten & Company is now indebted to him for such money left for deposit and belonging to the Evangelical Synod of North America, in the sum of $ 3,000, and in this ruling it is insisted by defendant that error was committed. When the objection was interposed to the admission in evidence of this affidavit the court admitted it in evidence accompanied by the remark that it would consider the objection afterward, but never ruled upon it, and it is now contended by plaintiff, that as defendant brought out the same facts contained in the admission by his own witnesses, this court can not ascertain from the record whether the trial court admitted or rejected this evidence. But this position seems to us to be untenable, for the reason that the logical effect of the ruling of the court was to overrule the objection, and nothing more was required of defendant in order that he might have that ruling reviewed by this court than to save his exceptions...
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