Lindell v. Lee

34 Mo. 103

Opinion

Bates, Judge,

delivered the opinion of the court.

The mortgage was collateral to the note, and the plaintiff could not have a judgment for the foreclosure of the mortgage if she could not have recovered upon the note.

The plaintiff’s testator having been a member of the firm which gave the note, she, by purchasing the note, which she was equally bound with the other members of the firm to pay, acquired a demand for so much money as she had expended for the use of the firm, which would be allowed her upon a settlement of the partnership. There is no averment or evidence of a settlement of the partnership accounts, or that this is the only unliquidated item. She cannot recover on the note. (McKnight v. McCutchen, 27 Mo. 436, and other cases.)

Judgment confirmed;

Judges Bay and Dryden concur.