American Bank v. Campbell , 1889 Mo. App. LEXIS 50 ( 1889 )

Ellison, J.

There is a voluminous record in this cause accompanied by briefs and abstracts aggregating near two hundred pages of printed matter; but from the examination we have made of the various points of the exception preserved, we are enabled to make a final disposition of the case, without entering into a detailed discussion of the alleged errors of which complaint is made.

The petition charges that William H. Carter, Franklin Thornton, William R. Colcord and defendant were the joint owners of three hundred and fifty or four hundred head of cattle in the state of Kansas. That Carter owed plaintiff a note of ten thousand dollars, which was secured by a chattel mortgage on his undivided interest in said cattle. That said cattle were afterwards, on the twenty-third and twenty-seventh of September, 188-, brought to Kansas City and sold, Carter’s share of the proceeds, after deducting expenses, amounting to the sum of $1557.71. That prior to such sale, defendant had promised and agreed with plaintiff “ to sell such cattle at private sale, and to account to and pay plaintiff the amount of the proceeds of the interest and shai;e of said W. H. Carter, in such cattle mortgaged to plaintiff as aforesaid.” That defendant received Carter’s share of the proceeds of sale “as promised by defendant for and to the use of .plaintiff as aforesaid,” and refuses to pay over the same but has converted it to his own use.

The evidence fails to sustain the petition in two essential particulars. It does not show the cattle to have been merely the joint property of Carter, Colcord, Thornton and defendant, but that it belonged to them as partners, and in consequence governed by the laws concerning partnership as distinguished from mere joint owners.

Neither does the evidence in any manner sustain the allegation that defendant promised and agreed to sell the cattle for plaintiff and pay over to it the proceeds. Carter was adjudged of unsound mind on February 8, 1886, by the probate court of Lafayette county and defendant was appointed his guardian. On the twenty-first day of August following, he was restored and defendant discharged from the guardianship. It was between these dates that it is contended he made the agreement under which this recovery is sought, and it was after Carter’s restoration, the cattle were sold. It clearly appears from the testimony that all the conversation he had with the bank officials in regard to their claim against Carter was in his capacity as guardian. There is no other tangible ground upon which to pnt it. There can be no question but that he understood, and that the bank understood, he was representing Carter and not himself.

But leaving the guardianship out of consideration, there was not, in my opinion, sufficient evidence upon which to base a verdict, holding defendant as he is charged in plaintiff’s petition.

The evidence is quite indefinite, but taken altogether, shows plainly enough that contractual relations were not intended to be created. Defendant as a partner, received th.e proceeds of the sale of the cattle which were partnership property, and paid over to Carter, as one of his partners, his, Carter’s, share of the proceeds ; and this he had a right to do, so far as anything to the contrary has been proven in this case. The result is we affirm the judgment.

All concur.