Weil v. Jones

• Decision Date: 31 October 1879
• Citation: 70 Mo. 560
• Parties: WEIL et al., Appellants, v. JONES.
• Court: Missouri Supreme Court

70 Mo. 560

WEIL et al., Appellants,

v.JONES.

Supreme Court of Missouri.

October Term, 1879.

Appeal from Phelps Circuit Court.--HON. V. B. HILL, Judge.

REVERSED.

This was a suit upon an account for goods furnished by plaintiffs to defendant. Defendant filed a counterclaim. It appeared that plaintiffs, who were a mercantile firm, had sold goods to one Koenig, who subsequently took defendant into partnership with him, the new firm taking the name of Koenig & Jones; that at the time this firm was formed Koenig owed plaintiffs a balance of $575.21, which balance was, by plaintiffs, carried into the account of the firm. The testimony whether this was done with the knowledge and consent of the firm, was conflicting. Goods were furnished to the firm from time to time, and such payments were made that upon the dissolution of the firm a balance was found due from plaintiffs. If the balance of $575.21 from the old account of Koenig was properly charged against the firm, the balance due from plaintiffs upon a settlement would be $31.36; if it was not properly charged, the balance would be $606.57, and plaintiffs still had a claim against Koenig for $575.21. The firm of Koenig & Jones dissolved, and Koenig afterwards died. Jones went on in business, and plaintiffs furnished him goods to the amount of $187.39, for which this suit was brought. On the day the suit was brought, the defendant took from the administrators of Koenig an assignment of Koenig's interest in the claim of the late firm against plaintiffs; and this was the counterclaim set up in the answer. The assignment was made without any order of the probate court authorizing it. The case was submitted to a jury without instructions, and the defendant had a verdict and judgment for $419.18, from which plaintiffs appealed.

L. F. Parker and C. F. Moulton for appellants.

C. C. Bland for respondent.

1. A BILL OF EXCEPTIONS.

SHERWOOD, C. J.

So far as concerns the bill of exceptions, it does not appear that it was filed in vacation, and if not so filed, no consent of parties entered of record was necessary. For aught that is shown by the record, the February term may have continued till the 9th day of March, when the bill was filed. Pershing v. Canfield, 70 Mo. 140.

In the above views of my associates, I do not concur. The brief of one of the counsel for plaintiffs expressly admits the filing of the bill to have occurred in vacation, and it nowhere appears to have been filed in term, or that consent was entered in term for filing out of term.

2. ADMINISTRATION.

The executor or the administrator of an estate has no authority to transfer the debts or evidences of debt due the testator or intestate, except as expressly permitted by statute. 1 Wag. Stat., p. 89, § 40; Stagg v....