Springer v. Cabell

Napton, J., delivered the opinion of the Court. Cabell brought ail aotion of assumpsit against Springer, the declaration containing one general count for work and labor, money lent, &c. The general issue was pleaded. The cause was submitted to the Circuit Court. The plaintiff, read in evidence a letter from Springer, dated ' St. Louis, Dec. 10, 1844, in which he told plaintiff, that if he continued his suit against him, he would' never pay him one cent, but if he would withdraw it, he would get him a tract of land worth government price. Charles Cabell, a witness for the plaintiff, testified, that he was present at a conversation between plaintiff and defendant, from which he learned, that they had entered into an agreement to be partners for the term of five years, in the buying and selling of lands; that they were to be equally interested in-the profits and losses attending said business; that [642] in pursuance of this agreement they took a trip to Virginia; that during said trip, plaintiff advanced to defendant some money to purchase a tract of land in Chariton county, near Brunswick; that this land was to be purchased in the name of the plaintiff; that defendant had purchased the land with his horse, saddle and bridle, and the money advanced by plaintiff, and had taken the deed to Abraham Springer, a brother of defendant; that the consideration for the land was estimated at about $150, or $160. At the time of this conversation, the witness and plaintiff had prepared a written agreement to be signed by plaintiff and defendant, containing as the witness understood, the substance of the verbal agreement made before the Virginia trip; but the defendant refused to sign the samp, giving as a reason therefor, that the plaintiff was embarrassed in his pecuniary affairs, and that this circumstance would operate against him, (defendant,) in the land business. This witness further stated, that he learned from some conversation between the parties, that plaintiff had advanced a horse to defendant during the time of their absence in'Virginia, and that defendant had exchanged that horse for a tract of land in Chariton county. The original agreement between these parties, the witness thought, was made as early as 1843. Another witness testified, that he had heard defendant admit, that he had received some money from plaintiff, and that with the money so received, and his own horse, saddle and bridle, he had purchased the tract of land near Brunswick; that the whole consideration for said tract was between $120 and $150; that he also heard defendant say, that he and plaintiff were in partnership in the purchase of said land. This was all the evidence offered, and upon this state of facts, the defendant called upon the court to decide that the plaintiff could not recover. But the court found a verdict for the plaintiff for $148, and gave judgment for the same. It was determined by this Court, in the ease of Stotherts vs. Knox, (5 Mo. R., 112,) that one partner cannot maintain assumpsit against another, whilst the partnership concerns remain unadjusted. The case of Byrd vs. Fox, (8 Mo. R., 574,) is only an exception to this general principle, in which the reason whereon the rule was founded, could have no operation. In the present case, all the transactions between the parties upon which this suit is sought to be maintained, grew out of the partnership for five years, in which both plaintiff and defendant were to share equally the profits and losses. It does not appear whether the speculations were profitable or worthless, and the verdict of the Circuit Court appears to be simply for the return of the money supposed to have been [643] advanced by one partner, without any regard to the results of the speculation in which it was invested. Such a verdict must be manifestly unjust to the plaintiff, if the lands purchased with the partnership money have proved greatly more valuable than the consideration given, and the verdict would not do less injustice to the defendant, if,,on the other hand, these lands turned out to be valueless. Hence the propriety of settling these unadjusted partnership transactions in another forum. Judgment reversed.