Wilson v. Hoover

• Decision Date: 17 September 1938
• Docket Number: 34999
• Citation: 119 S.W.2d 768,342 Mo. 1182
• Parties: H. W. Wilson and Earl W. Youngmeyer, Administrator of the Estate of J. H. Porter, Appellants, v. Joe R. Hoover
• Court: Missouri Supreme Court

119 S.W.2d 768

342 Mo. 1182

H. W. Wilson and Earl W. Youngmeyer, Administrator of the Estate of J. H. Porter, Appellants, v. Joe R. Hoover

No. 34999

Supreme Court of Missouri

September 17, 1938

Appeal from Jackson Circuit Court; Hon. Darius A. Brown Judge.

Judgment sustaining demurrer to petition reversed and cause remanded and plaintiff may amend petition to sue at law or if he have a cause for equitable accounting he can amend his petition accordingly; otherwise the trial court should dismiss the cause.

Ira B. Burns, L. J. Bond and Burns & Woods for appellants.

The court erred in sustaining defendant's demurrer to plaintiff's petition for the following reasons, to-wit (a) Because the court had jurisdiction of the subject matter in this action. (b) Because the personal representative of George P. Robinson, deceased, was not a necessary and indispensable party. Sec. 81, R. S. 1929; Binder v Markle, 37 Mo.App. 242; Rankin v. Fairly, 29 Mo.App. 587; Grier v. Strother, 111 Mo.App. 386, 85 S.W. 976; Elliott's Estate v. Wilson, 27 Mo.App. 218; State ex rel. Barlow v. Holtcamp, 14 S.W.2d 646; Butler v. Lawson, 72 Mo. 277; Rawlings v. Rawlings, 58 S.W.2d 735, 332 Mo. 503; State ex rel. Jackson v. Bradley, 193 Mo. 33, 91 S.W. 485; Grier v. Strother, 153 Mo.App. 292, 133 S.W. 404; Dameron v. Jameson, 71 Mo. 977; 21 C. J., pp. 263, 273; Pearce v. Calhound, 59 Mo. 271; Ensworth v. Curd, 68 Mo. 282. (c) Because plaintiff's cause of action is not barred by limitation. Canada v. Daniel, 175 Mo.App. 55, 157 S.W. 1032. (d) Because said amended petition does state facts sufficient to constitute a cause of action.

Watson, Ess, Groner, Barnett & Whittaker for respondent.

(1) The circuit court had no jurisdiction of the subject matter of this action, for the law imperatively requires that when a copartnership is dissolved by death, the affairs of the firm shall be settled in administration in the probate court. Art. III, Ch. 1, R. S. 1929; Hargadine v. Gibbons, 45 Mo.App. 460; Hargadine v. Gibbons, 114 Mo. 561; Pearce v. Calhoun, 59 Mo. 271; Ensworth v. Curd, 68 Mo. 282; Caldwell v. Hawkins, 73 Mo. 45; State ex rel. v. Withrow, 141 Mo. 69; Groves v. Aegerter, 42 S.W.2d 971; Troll v. St. Louis, 257 Mo. 626. (2) There is a defect of parties defendant, in that the personal representative of George P. Robinson, deceased, is not joined in this action nor before the court, and is a necessary and indispensable party to the accounting of the affairs of said alleged partnership. Bank v. Carrollton, 78 U.S. 624; Brew v. Cochran, 141 F. 459; Jones v. Anheuser-Busch Brewing Co., 189 S.W. 631; Grier v. Strother, 153 Mo.App. 292.

Bradley, C. Ferguson and Hyde, CC., concur.

OPINION

BRADLEY

This cause has been reassigned. Prior to January 1 1933, J. H. Porter, George P. Robinson, and defendant, Joe R. Hoover, were engaged as copartners in buying, pasturing and selling cattle. The firm name was Porter-Robinson-Hoover Company. About January 1, 1933, by mutual consent, the partnership was dissolved. After the dissolution and before the filing of this cause, Robinson died. Thereafter, Porter commenced this cause against Hoover for an accounting. Porter was adjudged non compos, and his guardians were substituted as plaintiffs and filed an amended petition. A demurrer to the amended petition was sustained and the guardians appealed. We infer that the demurrer was sustained on the theory that the circuit court did not have jurisdiction. Pending the appeal, Porter died and the cause was revived here in the name of the administrators of the estate of Porter.

The amended petition (omitting formal parts) alleges: That Porter, Robinson and Hoover were partners, engaged in the business above stated, and were operating under the firm name as stated; that prior to 1930, and during 1930, 1931, and 1932, the partnership business was carried on; that at the beginning of 1932, the partners "struck a balance as to the copartnership accounts for all previous years;" that all the arrangements and agreements between the partners concerning the copartnership were oral, except that on February 26, 1932, a written memorandum was executed. This memorandum is set out in the petition and recites:

"It is agreed and understood that the division in this partnership be as follows: J. H. Porter retaining one-half (1/2) interest, George P. Robinson one-fourth (1/4) interest, and Joe R. Hoover one-fourth (1/4) interest in all cattle handled by the above firm for period of one year from this date. Any and all losses that may occur during this period shall be shared as each of the partner's interest appears herein; but all profits accruing shall go to the said J. H. Porter as reimbursement to him for losses occurring in the year 1930 and 1931."

Following the memorandum it is alleged that by the partnership agreement the partners were to contribute, in the proportion of their respective interests, to the indebtedness, expenses, and losses that might be incurred "in the event that the proceeds from the operations of said copartnership did not equal its operating expenses."

It is further alleged that the books and records of the copartnership were kept at Kansas City, Missouri, by Hoover; that the partnership "operated over a period of years down to and including the year 1932, and that (at) the beginning of 1933, by mutual consent of all the partners, the said firm was dissolved, all of its assets sold and disposed of, and all liabilities of the copartnership to persons other than the members thereof were fully paid and discharged, and the business of the copartnership discontinued."

It is further alleged "that during the existence of said copartnership, and at all times herein mentioned, the said J. H. Porter financed the said copartnership venture, furnished to it the necessary capital with which to carry on its operations; that at various times during the existence of said copartnership and at all times mentioned therein, and more particularly during the years 1930, 1931, and 1932, said copartnership venture operated at a loss and its expenses of operations far exceeded its gross receipts; that upon the dissolution of said copartnership it was agreed by the defendant and the said Robinson that they would account for and pay over to the said J. H. Porter their respective proportionate part of any and all monies due and owing the said J. H. Porter, which said J. H. Porter had advanced as well as any and all monies which were due and owing to the said J. H. Porter for pasture rental under and by virtue of the terms of said copartnership agreement; that all the assets of said copartnership had been disposed of and that said copartnership has no outstanding indebtedness; that during the time said copartnership was conducted at a loss, all said losses were paid by the said J. H. Porter personally from his own personal funds and assets; that by reason of the losses and the payment thereof by the said J. H. Porter for his proportionate part of the said losses under the terms of the said copartnership agreement hereinbefore mentioned, the exact amount of which this plaintiff is unable to allege, but it is more than $ 30,000."

Plaintiffs allege "that after the dissolution of said copartnership and prior to the death of the said George P. Robinson, the said George P. Robinson again made a settlement and accounting with said J. H. Porter and said Robinson, and in settlement thereof executed to said J. H. Porter his promissory note in the sum of $ 38,550.20, which has been duly presented and allowed in the probate court of Jackson County, Missouri, as a claim against the estate of said Robinson, as payment in full for the monies due and owing from said Robinson by reason of, and growing out of, said copartnership venture."

It is further alleged: "Plaintiffs say that more than one year has elapsed since the appointment of the administrator and publication of notice thereof in the estate of George P. Robinson and that this defendant has never filed any claim in said estate on account of said copartnership.

"Plaintiffs further say that they are informed and believe that there was not at the time of the death of George P. Robinson any indebtedness existing between the defendant and said George P. Robinson on account of said copartnership affairs; that the sole indebtedness remaining unadjusted at this time is the indebtedness between the said J. H. Porter and this defendant arising out of said copartnership.

"Plaintiffs allege and say that although they have demanded of the defendant that he account for and pay over to the estate of said J. H. Porter his proportionate share of his indebtedness of said copartnership which the said J. H. Porter paid, and to render an accounting with them that said defendant has neglected and refused, and still neglects and refuses to account for and pay over same to the estate of said J. H. Porter; that said J. H. Porter did at all times account to the defendant in regard to the partnership affairs, and these plaintiffs are now, at all times, able and willing to so account; that the said estate of J. H. Porter is willing to do equity and has no adequate remedy at law, and unless there be an accounting between these plaintiffs and defendant, the estate of said J. H. Porter, will suffer irreparable injury and damage."

The prayer follows: "Wherefore, plaintiffs pray that there be an accounting of the partnership affairs between said J. H. Porter and defendant, and that the defendant herein be required to account for and pay over to these plaintiffs all moneys which may be found due and owing by the defendant to the estate of J. H. Porter, and that the court herein render judgment for this estate of J. H. Porter for the sum of money which may be...