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It denies that the agreement between Sanford and the other members of said copartnership, on its dissolution, is correctly stated in the bill, and aver that such agreement was, that, in consideration that Chouteau should save Sanford harmless on account of the debts of the St. Louis copartnership, Sanford would and did release and transfer to Chouteau all his interest in the assets and property of said copartner. ship, including his interest, if any, in said lands and town lots in Minnesota. It denies that Chouteau at any time agreed to assure to Sanford, free from any debts or liabilities growing out of said copartnership affairs, 173-100ths, or any part of said lands or lots in Minnesota. It avers that, by the deed of December 1, 1859, uamed in the bill, executed by Chouteau to the plaintiffs, he expressly reserved his rights to collect and dispose of, for his own use and benefit, all the assets of the dissolved St. Louis copartnership, in accordance with the transfer thereof to him by Sanford, before set forth in the answer. It avers that the copartnership, at the time of its dissolution, was indebted in the sum of $438,176.28; that the assets of the firm, exclusive of the interest, if any, of the copartnership in lands and lots in Minnesota and elsewhere, was insufficient to liquidate said indebtedness; that on May 1, 1860, there still remained an indebtedness of more than $212,000, which was advanced and paid by Pierre Chouteau, Jr., in his life-time, with the assent of the executors of Sarpy and Sire; that it was agreed by those executors that the amount of such indebtedness for which their estates were severally. liable should be refunded to-Chouteau from the proceeds of the sale of the unsold lands and lots in Minnesota; that this arrangement was not carried into effect during Chouteau's life-time; that Charles P. Chouteau and Mrs. Maffit subsequently sold and disposed of the remaining lands and lots and used the entire proceeds thereof to pay to themselves, as the heirs at law and sole legatees of Pierre Choutou, Jr., the amount remaining due to them by reason of his payment of said copartnership indebtedness; that the sales so made are the same sales mentioned in the bill; and that they were made at public auction, in good faith, for the full value of the lands and lots at the time, after having been duly advertised, and with the full knowledge of the plaintiffs. The answer further avers, by way of defense, that more than six years have elapsed since the accruing of any of the alleged causes of action set out in the bill.
After a replication to the answer, proofs were taken, and, after a hearing, the court made the following interlocutory decree, on August 13, 1878:
"(1) I find that, in 1852, the firm of P. Chouteau, Jr., & Co., No. 2, consisted of four persons, and the assets of the copartnership were owned, and the profits and losses were to be shared, in the following proportions: Pierre Chouteau, Jr., 48 per cent.; John B. Sarpy, 17} per cent.; John F. A. Sanford, 17} per cent.; Joseph A. Sire, 174 per cent. (2) That the copartnership was dissolved in 1852, by the mutual agreement of all the parties. (3) That a large amount of real property was owned by the copartnership in the terri
tory (now state) of Minnesota, at the time of the dissolution, having been purchased with copartnership funds. (4) That the legal title to the property was at that time in Charles W. Borup and H. H. Sibley, persons acting for said copartnership, and was by them, in 1855, conveyed to the firm of Pierre Chouteau, Jr., & Co., composed of Chouteau, Sire, Sarpy, and Sanford; and, also, in 1857, other real property, mentioned in the bill of complaint, was purchased for the benefit of the copartnership. (5) That, at the time of the
dissolution of said copartnership, it was agreed between John F. A. Sanford to and the other partners, inter alia, that he, the said Sanford, should release
to Chouteau all his interest in and to the assets of the copartnership, except the real property in Minnesota, and that, in consideration thereof and of his withdrawal from the said partnership, the said Chouteau should save him, the said Sanford, harmless on account of the debts of the said copartnership, and should assure to him, free from any debt or liability growing out of said copartnership affairs, the share of him, the said Sanford, in and to said real property, lands and town lots, being 17}-100th parts thereof. (6) That, in pursuance of the agreement, Sanford released his interest in the assets to Chouteau, except the lands and town lots, and during his life-time Chouteau realized all the said assets. (7) That Sire died in 1854, Sarpy in 1857, Sanford in 1857, and Pierre Chouteau, Jr., in 1865, all leaving heirs, devisees, and legal representatives, and there never has been any accounting of the business of the copartnership, except as stated in the bill of complaint, which is referred to. (8) That since the deaths of the said Sire, Sarpy, Sanford, and Chouteau, and in the years 1866 and 1867, and since then, the defendants Charles P. Chouteau and Julia Mafħtt, claiming as the heirs at law and devisees of the said P. Chouteau, Jr., to be owners of said real property in Minnesota, town lots and lands, have sold property outside of the city of St. Paul, in Minnesota, and have received large sums in money and securities, and have also sold and conveyed to various persons, including the several defendants mentioned specially in the bill of complaint as purchasers, a large amount of property situated in the city of St. Paul aforesaid, and received therefor a large amount of money and securities, without the consent of the heirs or representatives of said Sanford,
and without paying or tendering to them any part or portion thereof. (9) That the amount of real property remaining unsold, which was conveyed by said Borup and Sibley to the firm of P. Chouteau, Jr., & Co., and purchased for the benefit of the partnership, is large and of sufficient value to meet any and all claims made by complainants on account of the sale and conveyance of the property to the defendants named as purchasers in the bill of complaint and admitted in the answer.
“CONCLUSIONS. "By the terms of the dissolution of the copartnership of P. Chouteau, Jr., & Co., No. 2, Sanford was to retain his interest in the Minnesota real estate, being 173-100th parts thereof; and the complainants, as the representatives of the estate of John F. A. Sanford, are entitled: (1) To 171-100th parts of all the real estate mentioned in the bill of complaint, or in the schedules attached thereto, not sold to parties other than the representatives of Pierre Chouteau, Jr., Sarpy, and Sire. (2) It is ordered that an account be taken of all the real estate sold since the dissolution of the firm of P. Chouteau, Jr., & Co., by the retirement of J. F. A. Sanford, to parties other than the representatives of the said partners. (3) That, in stating said account, the lands and town lots sold to third parties in 1866 and 1867 be valued at their present value, less improvements made by the purchasers. (4) That in said account shall be stated the amount of all the taxes paid by Charles P. Chouteau and Julia Maffit upon the property sold, at the time of the conveyance, and also the amount of taxes paid upon the property unsold to date, and such bum as may be necessarily expended in the care and custody of the property. (5) That, after the deduction of the taxes and the amount necessarily expended for the management of the property, and on confirmation of the master's report. (6) It is ordered and adjudged that a decree be entered in favor of complainants, against the said defendants Charles P. Chouteau and Julia Maffitt, for the amount of 173-100th parts of the remainder, which shall be enforced and satisfied out of the interest of said defendants in the real property described in the bill of complaint or schedules, unsold. (7) That the bill of complaint against all parties defendants other than the representatives of P. Chouteau, Jr., Sarpy, and Sire, be dismissed, but without costs. (8) That H. E. Mann, Esq., is appointed to take the account and report."
In pursuance of the interlocutory decree a hearing was had before the master, whose report was filed August 2, 1880. Exceptions were taken by the defendants to the report of the master, as had also been done in reference to the interlocutory decree; and, on September 21, 1880, the court made a final decree, in which it was decreed that the plaintiffs are the owners in fee-simple, and are entitled to the posses. sion, as tenants in common, of an undivided 17 -100ths of certain lands in Minnesota described in the decree, and that partition be made of said lands between the plaintiffs and the defendants; that Charles P. Chouteau and Julia Maffit pay to the plaintiffs the sum of $36,646.56, being 173-100ths of the value of the lands sold by them in 1866 and in 1867; that Charles P. Chouteau individually pay to the plaintiffs $7,793.87, being 173-100ths of the balance of the in. come of lands claimed to be held by him in severalty, and of the proceeds of land sold by him since 1867; that Julia Maffitt pay to the plaintiff the sum of $8,178.57, being 173-100ths of the balance of the income of lands claimed to be held by her in severalty, and of the proceeds of lands sold by her since 1867; that the widow of Sire pay to the plaintiffs the sum of $1,214.08, being 173-100ths of the income of that portion of the lands claimed to be held by her in severalty, and of the proceeds of land sold by her since 1867; that the plaintiffs pay to the heirs and representatives of Sarpy the sum of $772.16, being 174-100ths of the balance of expenditures over receipts on account of lands claimed to be held by the heirs of Sarpy in severalty. These different sums adjudged against the defendants, amounting to $53,833.08, are declared to constitute liens upon the property owned by them respectively. The decree further declares that the rights of the several parties in the said real estate, so far as rents, issues, and profits and expenditures are concerned, are to be regarded as having been determined by the decree only up to January 1, 1879.
The dispute between the parties, as shown by the pleadings, is as to the terms of the agreement of dissolution of the copartnership in 1852. The plaintiffs allege in the bill that Sanford released to Chouteau all his interest in the assets of the firm, except its lands and town lots in Minnesota, and that Chouteau agreed to relieve Sanford from the debts of the firm, and to assure him his 173-100ths of qaid lands and town lots, free from any debt or liability growing
out of the copartnership affairs. The answer alleges that Chouteau agreed to relieve Sanford from the debts of the firm, and Sanford released to Chouteau all his interest in the assets of the firm, including his interest, if any, in the lands and town lots of Minnesota. The circuit court found the terms of the dissolution to be those alleged in the bill. The question is wholly one of fact. We are unable to concur with the decision arrived at by the circuit court on that question. The evidence is voluminous, and a minute discussion of it would be un profitable. It consists of correspondence and documents and oral evidence, and we must content ourselves with indicating generally the grounds of our conclusion.
The agreement alleged in the bill is said to have been contained in two letters, one from the firm of P. Chouteau, Jr., & Co., No. 2, the firm which was being dissolved, to Sanford, and the other from Sanford to the firm, in reply, both written in 1852, at the time of the dissolution. Those letters are not produced, nor are copies of them furnished. The only witness for the plaintiffs who testifies to having seen them, or who states their contents, is Mr. Barlow, one of the plain. tiffs. On his direct examination, he says that he saw them in 1858 and 1859, at the time when negotiations for compromise were going on between Pierre Chouteau, Jr., and the executors of Sanford, in regard to the claims of Chouteau against the estate of Sanford for his share of the losses of their New York firm; and that the last time he saw them was in 1861, when the answer of the executors of Sanford was being prepared in a suit brought against them by Chouteau in a state court in Minnesota, seeking a sale of the lands in question. He states that he was cognizant for many years before Mr. Sanford's death of the existence of the contract shown by the letters, though he did not see the letters till after Sanford's death, when they were found among Sanford's papers, and were in the possession of Mr. Gebhard and the witness. That contract he states thus, on his direct exam. ination:
"It was in the shape of a letter signed in the firm name of Pierre Chouteau, Junior, & Co., addressed to Mr. John F. A. Sanford, and responded to by him as of the same date, assenting to the terms proposed in the letter. These terms were that from that date Mr. John F. A. Sanford should retire from all connection with the St. Louis house, with the view of establishing a house in New York in connection with Mr. Chouteau, in which neither Sarpy nor Sire would have any interest; and it was agreed that the remaining partners in the St. Louis house should be entitled to all the assets and property of that firm; should have sole*power to settle its business; that they would relieve Mr. Sanford from all liabilities and obligations connected with the St. Louis firm; and that his interest in the Minnesota lands owned by the said St. Louis firm should be retained by him absolutely."
It is alleged that the letters have been lost and cannot be found after proper search. Mr. Barlow states that the first letter was dated at St. Louis and was signed by Chouteau in the name of the firm, but was not in his handwriting; and that the other letter was signed by
Sanford and may have been a signed copy of the original. On crossexamination he gives the form and language of the letters as follows:
"The first was dated at St. Louis, and addressed to Mr. John F. A. Sanford, and recited the fact that it had been agreed that from that date his interest in the firm of P. Chouteau, Junior, & Co., of St. Louis, should terminate, and that the assets and business of the firm should be continued for the benefit of the remaining partners, who agreed to assume all the responsibilities of the firm from that date, with a reservation at the close of the letter that Mr. Sanford's interest in the Minnesota property or purchase, according to my recollection,- I won't be certain whether it was property or lands,-should remain in him. In one of the letters (I think the St. Louis) there was a reference to the fact that Mr. Sanford was about to or had established a firm in New York, in which Mr. Sanford and Mr. Chouteau alone were interested, to the exclusion of Sarpy and Sire. The fact appeared in the letter that a New York house was about to be established, or was established, in which Sarpy and Sire would have no interest. Sanford's response was exceedingly brief and contained merely an assent to the terms proposed or suggested in the first letter. That is as near as I can recollect the contents of the letter.”
He further states, when asked “whether the reference to the Minnesota property in that letter spoke of interest in the Minnesota lands or in the Minnesota 'outfit:'" "I am confident that it was not outfit.'” It was either lands or property-Minnesota lands or Minnesota property -and not outfit,' I am confident.” . He is asked the following ques. * tion: "In reference to the agreement which you have spoken of as hav. ing been made by the firm of P. Chouteau, Jr., & Co., of St. Louis, and Mr. Sanford, at the time of Mr. Sanford's retirement in 1852, had you been informed of the existence of any such agreement before the matter of the compromise was entered upon ?” His reply is:
“I knew that Mr. Sanford claimed an interest in the Minnesota lands in his life-time. I do not know that I knew of any agreement about it at that time, or had even heard about it. The simple fact was referred to, the fact of Mr. Sanford's interest in the Minnesota lands was referred to, by Mr. Chouteau, in the course of the negotiations which led to the compromise after Mr. Sanford's death. I think I saw the agreement in question at the time of the preparation of the papers executed on this compromise, but I cannot positively say that I did. My first distinct recollection of seeing the agreement in question was at or about the time of the drafting of the answer of the executors to the bill filed by Mr. Chouteau for the partition of the lands in Minnesota, to which I have testified.”
It may well be questioned whether sufficient evidence was given of proper search for the letters, and of their loss, to warrant the parol evidence given of their contents. The parties who searched for the letters in the places where it was supposed they might be, were not called as witnesses, and there is no testimony as to the character or extent of the search, but only evidence by Mr. Barlow of his direction to persons to search, and his statement of his understanding of the result. There is no evidence that the letter from Sanford was ever sent. It was found among his papers after his death. On search, no such letter has been found among the papers of the firm in St.