Wright v. Jacobs

• Decision Date: 31 October 1875
• Parties: GEORGE R. WRIGHT, Appellant, v. CHARLES H. JACOBS, Respondent.
• Court: Missouri Supreme Court

61 Mo. 19

GEORGE R. WRIGHT, Appellant,

v.CHARLES H. JACOBS, Respondent.

Supreme Court of Missouri.

October Term, 1875.

Appeal from Boone Circuit Court.

Gordon & Overall, for Appellant.

I. One partner cannot maintain an action at law against his co-partner for money paid on account of the indebtedness of the firm. (Bond vs. Bemis, 55 Mo., 524; Scott, Adm'r, vs. Caruth, 50 Mo., 120; Finney vs. Turner, 10 Mo., 208; Murry vs. Bogert, 14 Johns., 318; McKnight vs. McCutchen, 27 Mo., 436.) A joint debt cannot be set off against an individual debt. (Finney vs. Turner, 10 Mo., 208; Lamb vs. Brolaski, 38 Mo., 51; Pool vs. Delaney, 11 Mo., 570.)

II. Legal tender notes and gold are equal in value, in law, and courts can suffer no averment, nor hear any proof to the contrary. (Henderson vs. McPike, 35 Mo., 255-6; Apple vs. Waltham, 38 Mo., 194; Riddlesbarger vs. McDaniel, 38 Mo., 138; Verges vs. Giboney, 38 Mo., 458.)

O. Guitar, for Respondent.

I. The item of $480.00 (the purchase price of respondent's interest in the mules, wagon, etc.) cannot be regarded as “an unsettled partnership demand.” So with the item of $736, alleged and proved to have been paid in the working and development of appellant's individual claim. So in regard to the amount claimed to have been paid on judgment of Sutton & Brother.

If, however, this latter item can be treated as “an unsettled partnership demand,” it was nevertheless competent for respondent to set it up as a legal defense, for it was certainly the sole unsettled item connected with said supposed partnership. (Byrd vs. Fox, 8 Mo., 574; Buckner vs. Reis, 34 Mo., 357; Whitehill vs. Schickle, 43 Mo., 537; Russell vs. Grimes, 46 Mo., 411; Bethel vs. Franklin, 57 Mo., 466.)

II. Legal tender notes are doubtless a legal tender in payment of all debts contracted between individuals. But here the sale of the wagon, etc., was made for $400 in gold, not coin.

WAGNER, Judge, delivered the opinion of the court.

This was an action instituted upon a negotiable promissory note made by the defendant in favor of the plaintiff, for the sum of one thousand dollars, due and payable twelve months after date.

Defendant's answer to the petition contains three counts. In the first count he alleges that at the time the note was executed plaintiff and defendant were co-partners, and the owners of a wagon, harness, four mules and one pony; that on the day after the execution of the note plaintiff purchased defendant's interest in the wagon, harness, mules and pony, for the price and sum of four hundred dollars in gold, which, with 20 per cent., the rate of premium on gold then existing in Montana territory where the transaction was had, would be equal to $480, which sum plaintiff agreed to credit on the note, and that he had failed to do so.

In the second count the answer stated, that the firm of Wright & Jacobs was at and after the execution of the note indebted to Sutton & Bro. for lumber, in the sum of six hundred dollars, upon which demand suit was brought and judgment obtained against defendant, which judgment he was compelled to pay, and did pay, and that plaintiff was indebted to him one-half of said sum and interest.

In the third count it was averred that the plaintiff was the owner of a mining claim in the Territory of Montana, and that when he left the Territory he put the claim in the possession and care of the defendant, with instructions to take all necessary steps, to hold, preserve and develop the claim, and to expend such sum or sums of money as might be necessary for that purpose, and that he agreed also to give defendant one-half of the claim and the profits arising therefrom, for his labor, time and services in looking after and managing the claim, and that in pursuance of instructions, he paid, laid out and expended, in taking care of and preserving the claim, the sum of $736 in gold, which was then worth a premium of 20 per cent. over currency, making the aggregate sum of $993.20, which was set up as a counter-claim against the note sued on.

To this answer there was a replication filed, denying all its material allegations. The evidence was conflicting, defendant's testimony going to show the truth of the averments contained in his answer; the plaintiff's testimony in rebuttal being directly to the contrary.

Under the instructions of the court the jury found a verdict n favor of the defendant, for twenty-two dollars and fifty cents.

The objections made in this court, that the plea of payments and the counter-claims set up in the answer should not have been allowed, because only such claims can be pleaded in an action at law as would sustain a legal action, and...