Young v. Powell
| Citation | 87 Mo. 128 |
| Parties | YOUNG, Administrator, v. POWELL, Appellant. |
| Decision Date | 31 October 1885 |
| Court | United States State Supreme Court of Missouri |
Appeal from St. Louis Court of Appeals.
AFFIRMED.
R. B. Vineyard and B. D. Lee for appellant.
(1) The third count of the petition does not state a good cause of action. Mc Williams v. Allan, 45 Mo. 573. This objection can be raised for the first time in the Supreme Court. State ex rel. v. Griffith, 63 Mo. 547; Peltz v. Eichele, 62 Mo. 171. (2) The cause was not a proper one for reference. Dooley v. Barker, 2 Mo. App. 325. (3) Treating the second count as a proceeding in equity for an accounting, the appellate court should review the evidence and reverse the judgment if the finding of the lower court is against its weight. Forrester v. Scoville, 51 Mo. 268; Morey v. Staley, 54 Mo. 419; Knowles v. Mercer, 16 Mo. 455; Ely v. Ownby, 59 Mo. 437; O'Neil v. Capelle, 62 Mo. 208. (4) The referee erred in finding the issues for plaintiff. There is no evidence controverting defendant's claim of settlement.
J. E. McKeighan and Alexander Young for respondent.
(1) The case was properly referred. The record shows this was done by consent of parties and it was too late when the report was filed to raise the objection that the case was not a proper one for reference. (2) The second count of the petition states a good cause of action. (3) The report of the referees and the decision upon the issues made by the second count and the answer and counter-claims were correct and should stand. The evidence showed defendant was but an agent of Levy and not his partner. Campbell v. Dent, 54 Mo. 325; Wiggins v. Graham, 51 Mo. 17; Story on Part., sec. 49. (4) The referees heard all the evidence, and their findings, when approved by the court below, must stand. The report of referees is like the verdict of a jury, and will not be set aside by an appellate court, if it has substantial testimony to sustain it. Benevolent Association v. Kribbe, 48 Mo. 37; Franz v. Dietrich, 49 Mo. 95; Hoyt v. Clark, 8 Mo. App. 565; Roemmich v. Wamaganz, 8 Mo. App. 576; St. Louis Stoneware Co. v. Patridge, 8 Mo. App. 217; Murphy v. Jones, 7 Mo. App. 570-71; Bank of North America v. Tamblyn, 7 Mo. App. 571.
This is an action instituted in the circuit court of the city of St. Louis by plaintiff, as administrator of Jonathan Levy, deceased, to compel defendant to account for moneys received by him, as the agent of Jonathan Levy. It was clearly proved that he received, on drafts remitted to him by Levy, about $30,000. One-half of that amount defendant claimed as a co-partner of Levy, in mercantile adventures in Montana territory, and the balance, he testified, he paid to Levy in 1874. He failed to prove the alleged co-partnership, and there is abundant evidence to sustain that finding of the referees. Having received the money as the agent of Levy, to be held by him for Levy, it devolved upon him to prove that he had repaid it to Levy or otherwise dispose of it, by Levy's direction. He testified that he and Levy had a settlement in 1864, of all matters between them, and proved a division of lands held by them in common, and the execution of deeds by each to the other, to consummate a partition, and other witnesses testified to having heard Levy say that he and defendant had had a settlement. So far as the lands held by them in common are concerned, there is no doubt that there was a settlement; but there was a matter of $30,000 received by defendant in drafts sent by Levy from Montana, and over $10,000 collected by defendant for Levy in St. Joseph of rents, for which, except about $11,000, he exhibited no receipts, no memorandum, no book account, nothing to show what disposition he made of that large amount of money.
It is incredible that a man of defendant's knowledge of business should have had such large dealings and settlements with an old man, seventy years of age, enfeebled in body and mind, known to have entrusted the management of his business to defendant for years without taking a receipt for the money he paid him, or having a witness to the settlement, or payments, or even making a memorandum of dates and amounts....
To continue reading
Request your trial
-
Denny v. Guyton
...Equity Jurisprudence (4 Ed.) p. 2499; Wilson v. Drumrite, 24 Mo. 304; Gray v. Parker, 38 Mo. 160; Cruce v. Cruce, 81 Mo. 675; Young v. Powell, 87 Mo. 128. (3) On the former appeal this court found there was a joint adventure as charged in the petition and that Wolcott had been defrauded in ......
-
State ex inf. McKittrick ex rel. Chambers v. Jones
...waited to determine whether the effect would be favorable or unfavorable before complaining. The objection comes too late. Young v. Powell, 87 Mo. 128, 130; State ex inf. Major v. Arkansas Lumber Company, 260 Mo. 212, 275, 169 S.W. 145. An inspection of the premises by the trial court or ju......
-
The State ex inf. Major v. Arkansas Lumber Co.
... ... County v. Bragg, 135 Mo. 300; Wood v ... Carpenter, 101 U.S. 135; St. Charles County v ... Powell, 22 Mo. 521; Life Ins. Co. v. St. Louis, ... 98 Mo. 422; Dice v. Hamilton, 178 Mo. 81; Ames ... v. Kansas, 111 U.S. 449; Ratican v ... referable under our statute. [ Utley v. Hill, 155 Mo ... 232, 55 S.W. 1091; Haas v. Garnett, 155 Mo. 568, 55 ... S.W. 1132; Reed v. Young, 248 Mo. 606, 612, 154 S.W ... 766.] Likewise the rule as to the force and effect of the ... reports of masters in chancery, is in consonance ... ...
-
Hancock v. State Highway Commission
...ex rel. Kimbrell v. People's Ice, Storage & Fuel Co., 246 Mo. 168, 151 S.W. 110; Hansen v. Duvall, 333 Mo. 59, 62 S.W.2d 740; Young v. Powell, 87 Mo. 128. The reference statute has repeatedly been held constitutional. Creve Coeur Lake Ice Co. v. Tamm, 138 Mo. 385, 39 S.W. 791; Johnson v. St......