Terry v. Hageman

59 So. 75, 102 Miss. 224

• Court: Mississippi Supreme Court
• Decided: March 15, 1912
• Status: Published

Opinion

Smith, J.,

delivered the opinion of the court.

• According to the allegations of the bill filed in the court below, there was formed in January, 1910, for the purpose of conducting a general domestic and export stave business, a partnership composed of J. J. Terry and C. E. Hageman, under the name and style of J. J. Terry & Co. Terry agreed to furnish the money necessary for the partnership operations, and Hageman agreed to give all of his time thereto. The net profits were to he divided, two-thirds to Terry and one-third to' Hageman; the latter also having- the right to withdraw from the business the sum of one hundred and fifty dollars per month, which was to be charged against his portion of the profits. It does not appear whether or not Terry advanced any money to the partnership; but about one month after the formation thereof, the partnership being in want of funds, Terry and Hageman entered into negotiations with appellant Sontheimer, which resulted in his becoming a member of the firm, each partner under the new agreement to receive one-third of the net profits. Sontheimer agreed to lend the firm fifteen hundred dollars, and also additional sums that might be needed for the purchase of staves, all staves purchased to be his property until all money advanced by him to the firm had been repaid. The old arrangement with Hageman was continued, but it does not appear whether Terry was to continue to advance money to the firm or not-There does not seem to have been any money paid by any of the partners into any general partnership fund.. Under this agreement Sontheimer advanced to the firm the sum of two thousand, seven hundred and thirty-seven-, dollars and forty-eight cents. Hageman having failed to carry out his part of the agreement, and having withdrawn “large' sums of money” from the business, the amount thereof not being stated, it is alleged “that the partnership was dissolved after personal notice to all parties;” but it does not appear that any settlement, of the partnership affairs was effected. The staves belonging to the firm being in Hageman’s possession, Sontheimer sued out a writ of replevin to obtain possession thereof, in order that he might sell them and apply the proceeds to the payment of the debt due him by the firm, claiming the right so to do under the terms of the partnership agreement.

The suit resulted in a judgment for Hageman. Possession of the staves having been delivered to Sontheimer under the writ of replevin, judgment was entered against him for their return to Hageman, and in default thereof that Hageman recover of him and his bondsmen their •value, which was fixed at eight hundred and twenty-:seven dollars and fifty cents. After the rendition of •this judgment appellants filed their bill in this cause in the court below, alleging the foregoing facts, and, in addition, that this judgment obtained by Hageman was firm property, was the only asset owned by it, that Hageman was largely indebted to the firm and was insolvent, and if allowed to collect this judgment he would apply the money to his personal use, and consequently it would be lost to the firm. The bill prayed that an account be taken of the partnership affairs, that Hageman be enjoined from collecting this judgment until this account .should be taken, and that Hageman be decreed to pay -complainants, or either of them, any amount which might be found to be due them, they offering to pay any amount which might be found to be due him by them. To this bill Hageman made no reply, either by way of answer or demurrer, but filed a motion to dissolve the injunction on four grounds, all of which may be reduced to one, and that is because Terry, on the face of the bill, has no interest in the suit, and so far as Sontheimer is concerned the matters complained of are res judicata by reason of the judgment in the replevin suit. This motion was sustained, and the injunction dissolved.

The allegations of the bill, not having been denied, must, for the purpose of this motion, be accepted as true.

The judgment in the replevin suit is not res judicata of the matters herein complained of, for the reason that the causes of action in the two suits are entirely different, and the stating of a partnership account, the settling of the equities of the partners inter sese, and the -distribution of the partnership assets were not, and -could not have been, embraced within the issues therein litigated and determined. Should authority he needed to sustain this proposition, it will be found in Hardy v. O’Pry, 59 South. 73, and authorities therein cited. The adjudication of Hageman’s right to obtain possession of the staves did not convert them from partnership into his personal property. If they were partnership property, they continued to remain so after the rendition of the judgment, and any money collected by him upon the judgment would be held by him in trust for the partnership.

The decree of the court below is reversed, and the cause remanded.

Reversed and remanded.