Tufts v. Latshaw

Citation72 S.W. 679,172 Mo. 359
PartiesTUFTS v. LATSHAW.
Decision Date24 February 1903
CourtUnited States State Supreme Court of Missouri

Suit by Freeling Tufts, as administrator of the estate of William G. Harvey, deceased, and in charge of the partnership estate of D. W. Williams & Co., against Henry J. Latshaw, as assignee of D. W. Williams & Co. From a judgment for plaintiff, defendant appeals. Affirmed.

Prior to and at the time of the death of W. G. Harvey, which occurred on the 18th day of December, 1889, he and one D. W. Williams were partners, doing business under the firm name and style of D. W. Williams & Co. Harvey died, as before stated, and Williams qualified as surviving partner, and continued the business as before in the firm name. He bought and sold goods and conducted the business as it had been conducted before Harvey's death. In September, 1890, a creditor of the copartnership estate filed in the probate court a motion to require Williams to give a new bond. This motion was heard on the 22d day of September, 1890, and was sustained by the court; and on the same day Williams made an assignment to the defendant, Latshaw, and delivered to him possession of all the property of D. W. Williams & Co., consisting of a stock of merchandise, notes, and accounts, amounting in the aggregate to $71,316.37. The merchandise, of which the defendant took possession, was appraised at $39,157.84. This consisted largely of goods that were on hand at the time of Harvey's death. Williams testified that he had, subsequent to Harvey's death, purchased, with the proceeds of goods sold, other goods, and also that he had borrowed money with which he had purchased goods. However, it was conclusively shown by the inventories made by Williams, when he qualified as surviving partner, and by Latshaw, when the deed of assignment was executed, that practically all of the merchandise on hand at the time Williams made the assignment was the same property that was on hand at the time of Harvey's death. The notes and accounts were what remained uncollected of the notes and accounts due the firm at the time of Harvey's death. Williams, subsequent to Harvey's death, speculated in whisky, buying the same in bond. For the purpose of carrying on this speculation, he borrowed money from various parties, and hypothecated warehouse receipts for whisky to secure the same. For the purpose of protecting these individual creditors he made the assignment, and delivered to defendant the property of D. W. Williams & Co., which was in his possession as such surviving partner. The papers in this case, including the bill of exceptions, as also the papers in the assignment and the papers in the copartnership estate, cannot be found, and there is therefore no means whatever of settling any controverted questions as to the facts. The cause seems to have been referred to Hon. F. P. Sebree, as referee, who, after hearing the evidence, submitted to the court his report, as follows:

"To the Honorable the Circuit Court of Jackson County, Missouri: This cause having been referred to me by the said court, with directions to hear and decide the issues involved therein, I make and submit the following report. After being duly sworn as referee, I proceeded to hear and take the evidence, and herewith return the same.

"Finding of Facts.

"I find the facts to be that on and prior to the 18th day of May, 1889, David W. Williams and William G. Harvey were partners, engaged in the wholesale liquor business at Kansas City, Mo., under the firm name of D. W. Williams & Co. On said date said William G. Harvey died intestate, and the plaintiff, Freeling Tufts, thereupon was appointed, and is yet, the administrator of the individual estate of the said Harvey. The surviving partner of the said firm, David W. Williams, on or about the 23d day of May, 1889, qualified as the administrator of the said partnership estate, and as such took charge of the assets thereof, which at the time were appraised at $149,062.97; the stock of merchandise on hand, furniture, and fixtures being appraised at $54,658.58, and the accounts and bills receivable being appraised at $94,365.59. The liabilities of the firm amounted to $87.062.18. David W. Williams continued to conduct the business at the same place and under the same name of D. W. Williams & Co., selling and disposing of goods, buying goods, and replenishing the said stock with the proceeds of collections of said accounts and bills, and from sales of goods and from money borrowed, and collecting the accounts and bills receivable, and making payments on the debts of the firm, in the usual course of the business, as it was conducted by the firm before the death of the said Harvey, until the 22d day of September, 1890, when he made a general assignment for the benefit of his creditors to the defendant, Latshaw, which is hereafter referred to.

"The stock of goods, furniture, and fixtures of the partnership estate of D. W. Williams & Co. were of the value put upon them by the appraisers, to wit......$54,658 58 And D. W. Williams collected

                  from the notes and accounts the
                  sum of......................... 14,154 83
                                                 __________
                                                 $68,813 41
                

"On the 12th day of September, 1890, one of the creditors of the estate of D. W. Williams & Co. gave notice to D. W. Williams, the administrator of the partnership estate, that it would, on the 22d day of September, 1890, or as soon thereafter as it could be heard, apply to the probate court of Jackson county, Mo., for an order on him to give a new bond, as such administrator, for the reason that the sureties on his bond were about to become nonresidents of Missouri, that they had disposed of and removed their property beyond the jurisdiction of the court, and were insufficient. On the 21st day of September, 1890, the application for a new bond was heard by the probate court, and the said court, found on application to me, made an order on said D. W. Williams to give a new bond in the sum of $50,000 within five days. On the 30th of September, 1890, the probate court found that said Williams had failed to give such bond, and thereupon revoked his letters of administration, and ordered that he have no further authority over the assets of the estate, and appointed the plaintiff the administrator of the said estate, and ordered the estate into his hands. On the 22d day of September, 1890, the day set in the notice for the applying for the order for a new bond, the said D. W. Williams made the deed of assignment to the defendant, Latshaw, in which was included the said stock of goods then on hand, the book accounts and bills receivable, and the interest of said D. W. Williams in certain real estate. The defendant, H. J. Latshaw, at once qualified as assignee, and took the assigned property into his possession, and had the same invoiced and appraised. The appraisement shows that the assigned estate was of the value of $71,361.37, made up of the following items, viz.:

                Bills receivable .................. $ 8,736 32
                City accounts .....................   8,372 88
                Country accounts ..................   2,167 16
                Interest on note ..................      31 03
                Cash on hand ......................       1 14
                Merchandise, including fixtures....  39,157 84
                                                    __________
                  Total merchandise, accts., etc... $71,361 37
                

"The merchandise assigned to defendant, Latshaw, consisted partly of goods which were on hand at the time of the death of William G. Harvey, partly of the goods purchased with the proceeds of the sales of goods which were on hand at the time of his death, and partly of goods purchased with money borrowed by Williams after the death of said Harvey. But there was no separate account kept of these several lots of goods nor of the sales therefrom, and it is impossible to separate or distinguish the goods of the several lots, or the proceeds of sales that were made from them. The accounts and notes that were assigned to defendant, Latshaw, consist partly of accounts and notes in the conduct of the business after the death of said Harvey, and the proceeds of accounts and notes collected by said Latshaw were derived from both classes of said notes and accounts, but the amount of the collections from each class cannot be determined from the evidence. From the sales of merchandise, furniture and fixtures, and collection of notes and accounts the defendant, Latshaw, received and had on hand after paying certain expenses on May 6, 1895, the sum of $11,241.41, and yet has that amount on hand so far as appears from the evidence.

"After the death of said Harvey, the National Bank of Commerce, a creditor of the copartnership, had two claims allowed against the estate, which still remain unpaid. These are as follows:

                August 2, 1889................. $12,223 31
                  "    "    " .................   8,051 06
...

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