Tufts v. Latshaw

• Decision Date: 24 February 1903
• Parties: TUFTS, Administrator, v. LATSHAW, Assignee, Appellant
• Court: Missouri Supreme Court

72 S.W. 679

172 Mo. 359

TUFTS, Administrator, v. LATSHAW, Assignee, Appellant

Supreme Court of Missouri, Second Division

February 24, 1903

Appeal from Jackson Circuit Court. -- Hon. Edward P. Gates, Judge.

Affirmed.

C. H Nearing for appellant; R. E. Ball of counsel.

(1) The evidence wholly fails to support the case stated in the petition and the report of the referee does not undertake to find and the plaintiff did not undertake to prove any definite amount of property belonging to the partnership estate that had passed into the hands of the assignee, or any definite amount of property passing to the assignee which had been purchased with the proceeds of partnership property; and in such case, there was a total failure to prove the facts stated in the petition, and facts necessary to sustain any such action. Phillips v. Overfield, 100 Mo. 466; Paul v. Draper, 158 Mo. 197; 48 Central Law Journal 350. (2) No case can be found which contravenes the proposition that even where an action to follow a trust fund will lie, it does so to the extent and only to the extent of the amount of the trust fund or trust property, or amount of the proceeds thereof, that went into the estate of the tortious trustee. All the cases recognize that it is absolutely necessary to show the amount of the trust fund or property, or the amount of the proceeds, and that these, in fact. were mingled with and became a part of the assets sought to be charged with a preference. In this case, there is neither any proof of the fact, nor any attempt to prove it. The court below holds that it is not necessary. This is not the law. Bircher v. Walther (Mo.), 63 S.W. 691.

Elijah Robinson and C. S. Owsley for respondent.

(1) That property held in a fiduciary capacity, or the proceeds of such property, may be recovered wherever found, unless in the hands of a purchaser, for value, without notice, is a proposition so well settled that it can not be disputed. St. L. Union Society v. Mitchell, 26 Mo.App. 206; Railroad v. McAlpine, 129 U.S. 314; Bank v. Ins Co., 104 U.S. 54; Olliver v. Piatt, 3 How. 333; May v. LeClair, 11 Wall. 217; United States v Bank, 96 U.S. 30; Perry on Trusts, sec. 828; Cook v. Tullis, 18 Wall. 341. (2) Because of the confusion of property, resulting from the acts and conduct of defendant's grantor, Williams, the plaintiff is entitled to recover from the defendant all of what remains of the proceeds of the property that came into his hands. Drew Glass Co. v. Baldwin, 27 Mo.App. 44; Kent's Commentaries, 365; Cooley on Torts, p. 53; Englor v. Offutt, 70 Md. 78, 14 Am. St. 332; Bank v. Ins. Co., 104 U.S. 54; Harrison v. Smith, 83 Mo. 210; Perry on Trusts, sec. 838. (3) The point undertaken to be made by appellant as to there being a failure of proof to sustain the allegations of the petition is wholly without merit. The petition alleges that Williams, instead of winding up the partnership estate, used the assets thereof in continuing the business, and did so continue the business with said assets and the proceeds thereof until he made the assignment to Latshaw, whereupon Latshaw took charge of said assets and sold and disposed of the same. (4) This court will consider only such objections as were raised by the exceptions filed in the trial court. Singer Mfg. Co. v. Givens, 35 Mo.App. 610; Wiggins Ferry Co. v. Railroad, 73 Mo. 419; Underhill v. Pomeroy, 6 Hill 603; Ward v. Craig, 87 N.Y. 550.

OPINION

BURGESS, J.

Prior to and at the time of the death of W. G. Harvey, which occurred on December 18, 1889, he and one D. W. Williams were partners doing business under the firm name and style of D. W. Williams & Co. When Harvey died, as before stated, 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 co-partnership estate filed in the probate court a motion to require Williams to give a new bond. This motion was heard on September 22, 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 whiskey, buying the same in bond. For the purpose of carrying on this speculation he borrowed money from various parties and hypothecated warehouse receipts for whiskey 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 co-partnership estate, can not 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 C. Harvey were partners engaged in the wholesale liquor business at Kansas City, Missouri, under the firm name of D. W Williams & Co. On said date said William C. 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 23rd 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 & Company, 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 22nd 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 & Company 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, making a total of $ 68,813.41.

"On the 12th day of September, 1890, one of the creditors of the estate of D. W. Williams & Company gave notice to D. W. Williams, the administrator of the partnership estate, that it would on the 22nd day of September, 1890, or as soon thereafter as it could be heard, apply to the probate court of Jackson county, Missouri, 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 non-residents 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 made an order on said D. W. Williams to give a new bond in the sum of fifty thousand dollars within five days.

"On the thirtieth 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 22nd 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...