Whetstone v. Shaw

• Decision Date: 31 October 1879
• Citation: 70 Mo. 575
• Parties: WHETSTONE v. SHAW, Appellant.
• Court: Missouri Supreme Court

70 Mo. 575

WHETSTONE

v.SHAW, Appellant.

Supreme Court of Missouri.

October Term, 1879.

Appeal from Bates Circuit Court.--HON. WM. S. SHIRK, Judge.

AFFIRMED.

T. J. Galloway and W. P. Johnson for appellant.

C. C. Bassett for respondent.

NORTON, J.

Plaintiff, Whetstone, claims in his petition, that he and defendant, Shaw, jointly purchased of one Wilson, a note of one Pickett, amounting to $1,998.20, and each paid half of the purchase money. Said note was secured by deed of trust on real estate. Plaintiff alleges that defendant, without the consent or authority of plaintiff, afterwards surrendered said note to said Pickett, and took another note from Pickett in the name of Shaw alone, and appropriated the whole amount thereof to his own use, and failed to account to plaintiff for any part thereof. Whetstone claims that he is entitled to one-half of the Pickett note, so purchased from said Wilson, together with interest thereon.

All the allegations of the petition are denied by defendant in his answer, and it is therein alleged that about the 31st day of January, 1872, plaintiff and defendant entered into partnership for the purpose of doing a general trading business in stock, notes and general business matters, that in transacting business under their firm name of Shaw & Whetstone, they borrowed various sums of money and purchased notes, and among them was one purchased from J E. Wilson, executed by Pickett for $1,650; that plaintiff being indebted to said firm by reason of certain checks drawn by him on the deposits of the firm and applied to his own use, assigned all his interest in said Pickett note to defendant, whereby he became the absolute owner thereof. For a further defense it is alleged that on the 25th day of October, 1873, said partnership was dissolved, and plaintiff and defendant each accounted with the other, and the said defendant settled with said plaintiff concerning all the dealings of said firm, and concerning all the accounts, debts and credits existing between them; that upon said accounting and settlement, a balance was found due plaintiff which defendant then paid in full of all and every sum of money due plaintiff from defendant on account of all and every one of their dealings as partners or otherwise, and that said payment was accepted by said plaintiff as a full, final and complete settlement of their dealings and partnership transactions.

Plaintiff in his replication denies that he was indebted to the said firm as charged in the answer, or that he assigned to defendant his interest in the Pickett note. He admits the dissolution of the partnership and that plaintiff and defendant proceeded to account with each other, and that defendant accounted with plaintiff concerning all the dealings of the said partnership, except the said Pickett note, which he avers was not included in said accounting and settlement. The cause was tried upon these issues and plaintiff obtained judgment for $1,330.75, from which the defendant has appealed to this court.

As the principal questions presented for our consideration arise out of the action of the court in giving and refusing instructions we here insert them. Those given for plaintiff are as follows:

1. “If the jury believe from the evidence that the plaintiff and the defendant jointly purchased the note described in the pleadings from J. E. Wilson, upon Mitchell Pickett, and jointly borrowed the money to purchase said note, and that the plaintiff, Whetstone, paid the full half value thereof and was equally interested therein with the defendant, Shaw, and entitled to one-half of the proceeds thereof, that the said Shaw converted the entire amount of the said note to his own use and failed to account for and pay over to the said Whetstone his proper proportion thereof, then the jury will find for the plaintiff, and assess his damages at the amount so found to have been converted by the said Shaw, together with the interest thereon, at the rate of ten per cent. per annum, from the time they may find that the said Shaw converted the same to his own use.”

2. “If the jury believe from the evidence that Whetstone and Shaw were jointly and equally interested in the said...