Campbell v. Coquard
Campbell v. Coquard
Opinion of the Court
Plaintiff and defendant entered into an agreement by parol, in 1879, to do business together for joint account in the purchase and sale of such securities as should be agreed upon, sharing in the profits and losses of such joint ventures on the basis of two-fifths to plaintiff, and three-fifths to defendant, the defendant furnishing the money to make the purchases and to “carry” the properties purchased until they could be sold, the “cost of carrying” being added to the original cost. Plaintiff was also allowed for his services the salary of seventy-five dollars per month. Under this agreement, the parties operated extensively until November 1, 1882, when the joint arrangement termi
There was no material conflict in the testimony as to the contract between the parties. The matters in controversy were placed in the hands of a referee, who made his report, which was confirmed by the circuit court. From this judgment, both parties appealed to the St. Louis court of appeals, where the judgment of the lower court was affirmed. From this judgment of affirmance the defendant alone has appealed. His appeal presents but two points, which will now be considered.
I. There was no error in the action of the referee in charging the defendant with ten per cent, interest, from November 1, 1882, to May 21, 1883, on the balance of the money of the plaintiff in his hands. The referee allowed the defendant ten per cent, on the cost of unsettled transactions up to the date last mentioned, and having done this, allowed the plaintiff a like rate of interest on the balance which was retained in the defendant’s hands, from November 1, 1882, from which
II. There was no evidence to support the claim of the defendant against the plaintiff for thirty-one hundred dollars, this charge being a “rough estimate of telegraphic expense, and of plaintiff’s portion thereof, •alleged to have been incurred during the three years and a half of joint ventures.” There was no proof to support this claim. It was first entered on the defendant’s books about March 81,1883, not only after suit was brought, but while the hearing was in progress before the referee. The very fact that no such charge was ever claimed, made, or entered before that period, and until some four years had gone by, is evidence sufficient to condemn it •as an afterthought, and as having no valid foundation. Aull Savings Bank v. Aull, 80 Mo. 199; 1 Greenl. Evid., sec. 197; Watkins v. Donnelly, 88 Mo. 322.
Therefore, the judgment is affirmed; and as there is no merit in this appeal, this will be done with ten per cent, damages.
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