Thompson v. William Bennett's Adm'r

• Decision Date: 31 March 1864
• Citation: 34 Mo. 477
• Parties: ABRAHAM THOMPSON, Respondent, v. WILLIAM BENNETT'S ADMINISTRATOR, Appellant.
• Court: Missouri Supreme Court

34 Mo. 477

ABRAHAM THOMPSON, Respondent,

v.WILLIAM BENNETT'S ADMINISTRATOR, Appellant.

Supreme Court of Missouri.

March Term, 1864.

Appeal from St. Louis Circuit Court.

Hume & Gottschalk, for respondent.

Lackland, Cline & Jamison, for appellant.

BATES, Judge, delivered the opinion of the court.

This was a suit upon a promissory note made by the defendant payable to the plaintiff. The petition stated that, after the execution and delivery of the note, the plaintiff, at the request of the defendant, delivered the note with others to a third person to be held by him for a short time, until it should be ascertained whether any errors had been made in the books kept in a certain business, in which the plaintiff and defendant were jointly concerned, so that they should not be negotiated before the books were examined, and if no erroneous entries should be found in the books, the plaintiff was again to possess the notes; that a reasonable time had elapsed and no errors had been found in the books, and none existed; but that the person who held the notes, being influenced thereto by the defendant, refused to deliver the notes to the plaintiff.

The answer denied that the plaintiff was the owner of the notes, and stated that a co-partnership had existed between the plaintiff and the defendant, and that on the 22d of February, 1860, they dissolved their co-partnership and the plaintiff retired from the business, and the defendant executed the notes to the plaintiff and delivered them to George E. Harding, upon the express agreement and understanding, that the books of said co-partnership and the accounts of the respective partners should be examined by some impartial person, and said notes remain in said Harding's hands subject to the result of said examination; and if upon said examination the said plaintiff was found to be indebted to the defendant, that then and in that case the said notes should be of no avail or effect, and the same were to be delivered up to the defendant; and that the books were so examined and the plaintiff was found to be indebted to the defendant in a sum largely exceeding the amount of said notes, whereby they became of no effect.

At the trial, it appeared in evidence that while the plaintiff and defendant were partners, difficulties arose between them, and they applied to Mr. Harding to assist them in making an amicable settlement, and that he recommended to them as a compromise that they should dissolve their partnership; that Bennett...