Thompson v. Holden

• Decision Date: 19 June 1893
• Citation: 22 S.W. 905,117 Mo. 118
• Parties: Thompson v. Holden et al.; Warren, Appellant
• Court: Missouri Supreme Court

22 S.W. 905

117 Mo. 118

Thompson v. Holden et al.; Warren, Appellant

Supreme Court of Missouri, First Division

June 19, 1893

Appeal from St. Louis City Circuit Court. -- Hon. D. D. Fisher Judge.

Affirmed.

Christian & Wind for appellant.

(1) The allegation in the petition that "said defendant Warren claims some interest in said premises, the nature of which interest plaintiffs have no knowledge or information, but make the said Warren a party hereto, so if he has any right title or interest in the said premises, that the court may determine the same as to the court may seem right and proper," does not state any cause of action against Warren nor show him to be a proper party. Warren's demurrer to the petition should therefore have been sustained. Revised Statutes Mo. 1889, ch. 122, secs. 7134 7135, 7136. (2) First. The contract between Robt. F. Burt and Robert H. Gardner, as parties of the first part, and Thomas H. Warren, as party of the second part, created a partnership between them and made the land partnership property. Bates on Partnership [Ed. 1888], secs. 1, 12, 18, 35, 56, 280, 281, 290 and 822. Maclay v. Freeman, 48 Mo. 234; Lengle v. Smith, 48 Mo. 276; Plummer v. Frost, 81 Mo. 425; McDonald v. Matney, 82 Mo. 365, 366; Priest v. Choteau, 85 Mo. 398; Ban v. Altheimer, 91 Mo. 190. Second. Warren, therefore, had an interest in the partnership land which was not destroyed by conveyance to persons having notice of contract. Carlisle v. Mulhern, 19 Mo. 56; Crow v. Drace, 61 Mo. 225; Willett v. Brown, 65 Mo. 138; Tieman v. Molliter, 71 Mo. 512; Priest v. Choteau, 85 Mo. 398. Third. And there could be no partition until a partnership accounting was had. Bates on Partnership, sec. 280; Holmes v. McGee, 27 Mo. 597. (3) First. The second part of answer sets up a good defense in charging that the parties have combined for purpose of depriving him of his interest while he is unable to protect himself, owing to the litigation now pending against him in federal court, involving his interest in the property, and which is under the control of plaintiff in this cause. Baier v. Berberich, 13 Mo.App. 587; Vail v. Knapp, 85 Mo. 50. Second. The collusion to make a sale at a fixed price is fraudulent. Neal v. Stone, 20 Mo. 294; Norton v. Hinkle, 20 Mo. 290. (4) The action instituted in the federal court by Wm. B. Thompson, as attorney for Robert F. Burt, had the same object in view as the case subsequently instituted by Wm. B. Thompson in his own behalf. All the parties to the action before the court claim under Burt & Gardner, who were parties to that action. Therefore, the plea of another action pending is good in abatement.

Arba N. Crane and Tyson S. Dines for respondents.

(1) Plaintiffs' petition set forth the names, rights and titles of all parties interested in the land so far as the same could be stated. It was impossible for the plaintiffs to state what the interest of Warren was in the land. He had recorded the writing between him and the former owners of the land, but the plaintiffs were not parties to that writing, and what was to be proposed as its legal effect was known only to Warren himself. Revised Statutes, 1889, secs. 7134, 7136; Holloway v. Holloway, 97 Mo. 628; Bliss on Pleading, sec. 310. (2) The answer of Warren was a waiver of any objections to the form and substance of the allegations in the petition touching his supposed claim to the property. Sayer v. Devore, 99 Mo. 437. The question would be, is the petition sufficiently definite as to Warren, and is it waived by answer. Spurlock v. Railroad, 93 Mo. 530. The objection by Warren that the exclusion of his special defenses renders the decree erroneous upon the record is not tenable, because his answer still tendered issues to all the allegations in the petition, and the case was tried upon those issues, and he did not move for a new trial. (3) If, however, this court considers that on this record the appellant is entitled to have the matter of his special pleas examined here, we submit that the demurrer to these pleas was properly sustained, because: First, as to the first plea we say the writing of October 13, 1882, does not make Warren a partner of Burt & Gardner in the land. We submit also that this writing does not make him a partner with Burt & Gardner at all. Meyer v. Sharpe, 5 Taunt. 74; Smith v. Watson, 2 B. & C. 401; Ellsworth v. Pomeroy, 26 Ind. 158; Blair v. Schaeffer, 33 F. 218; Story on Partnership, sec. 23; O'Donnel v. Harsh, 67 Mo. 170, and cases therein cited; Stowe v. Robinson, 24 Ill. 532, and cases therein cited; 1 Lindley on Partnership, p. 14; Hazard v. Hazard, 1 Story, 371; Muzzy v. Whitney, 10 John. 226; Dunham v. Rogers, 1 Pa. St. 255; Buckle v. Eckert, 1 Den. (N. Y.) 337; Leonard v. Tel. Co., 41 N.Y. 544; Brockway v. Burnap, 16 Barb. (N. Y.) 309; Bowman v. Bailey, 10 Vt. 170; Ferguson v. Alcorn, 1 B. Monroe, Ky. 160; Price v. Alexander, 2 Greene, (Iowa), 427; Gill v. Feris, 82 Mo. 156; Harkey v. Becht, 25 Minn. 212; second, as to the plea of lis pendens, the second plea, we say it is bad because it shows that the suit in the United States circuit court is not between the same parties, nor upon the same issues or cause of action, nor for the same purpose, or for the same relief as the case here. State ex rel. v. Dougherty, 45 Mo. 294; Jacobs v. Lewis, 47 Mo. 344; Dwight v. Railroad, 9 F. 785; Hurst v. Everett, 21 F. 221. Third. As to the third plea which seeks to restrain the plaintiffs from prosecuting this suit, it falls with the other pleas. Mulholland, v. Rapp, 50 Mo. 42.

Macfarlane, J. Black, C. J. and Brace, J., concur. Barclay, J. does not take part.

OPINION

Macfarlane, J.

-- This is a suit for the partition of thirty-two acres of land in St. Louis. Thompson and a number of other parties are petitioners, and Holden and others are defendants, among them T. H. Warren. The petition sets forth the interests of all the parties, except Warren, whose interest is not declared. He is the sole appellant. He, by answer, denied the rights of the other parties as charged in the petition, and set up as a special plea his interest in the property under the following contract, averring that the other parties obtained their interests through Burt & Gardner with notice:

"Articles of agreement made and entered into this the thirteenth day of October, A. D. 1882, by and between R. F. Burt and Robert H Gardner, both of the city of Columbus, state of Ohio, parties of the first part, and Thomas H. Warren, of the city of St. Louis, state of Missouri, party of the second part, witnesseth: That, whereas, the said parties of the first part have this day bought of Wm. J. Haynes a tract of land, and by written agreement as a bond for a deed to the same, described as follows: The said tract of land containing thirty-two acres, more or less, and bounded north by Olive street, east by land now or late of Chouteau, south by Kingsbury boulevard, and west by a creek separating it from land now or lately owned by Wm. B. Newell; now, therefore, be it known that the conditions of this agreement are such that for and in consideration of the sum of $ 1 in hand, lawful money of the United States, paid by the party of the second part to the parties of the first part, the receipt whereof is hereby acknowledged, and the further consideration of services rendered and to be rendered by the party of the second part to the parties of the first part, the equity and justice of said service being hereby fully acknowledged, have this day sold and by this agreement doth grant and convey unto the said party of the second part, his personal representatives and assigns, a full partnership of one-half interest in the proceeds arising or in anywise accruing from the sale, partition and transfer of the aforementioned tract, thirty-two acres of land in the city of St. Louis and state of Missouri, subject, however, to the following reservations and stipulations:

"First. The said parties of the first part are to receive out of the proceeds of the sale of the said tract of thirty-two acres of land, the sum of $ 28,500 with six per cent. interest per annum until said sum is realized from the sale of said land, which the parties of the first part are entitled to receive as their individual capital invested therein; and,

"Second, That the parties hereto contracting, being mutually interested in the sale of the said aforementioned thirty-two acres of land, hereby pledge themselves to each other to diligently employ himself in the sale of all and singular parts or parcels of said thirty-two acres of land, and to pay his proportion of all expenses that may be necessary for surveys, plats, showing the property, advertising, commissions to outside parties, abstracts, and all expenses that may be deemed needful to enhance the value and promote and advance the sale of said partnership land; and,

"Third, To keep, or cause to be kept, a faithful record of all the sales, the amount received, dates of transfers and all expenses accruing in the sale and management of said partnership land -- said records to be subject to the inspection at any and all times of each of the parties hereunto contracting, their legal representatives and assigns; and,

"Fourth, That no bargain, sale or transfer of said partnership land shall be made without first obtaining the written consent of all the parties hereunto contracting, and that said partnership is to continue in full force and effect until all said partnership land is sold and the proceeds disposed of according to the reservations and stipulations of this contract; and,

"Fifth That after the said parties of the first part shall have realized from the sale of said thirty-two acres of land the sum of $ 28,500 with interest thereon, shall have been...