
    Jed Carlin, Respondent, v. W. G. Haynes, Appellant.
    St. Louis Court of Appeals,
    March 1, 1898.
    Evidence: practice. A. party to a suit can not invite error, consent to error, on the trial ,o£ a cause and afterward be heard to complain that the court erred in permitting him to do so.
    
      Appeal from the Barry Circuit Court. — Hon. J. C. Lamson, Judge.
    Affirmed,
    Thos. Carlin for respondent.
    Appellant assigns as first error: The court erred in permitting irrelevant and incompetent testimony on behalf of plaintiff. This was an action at law, in no way connected with partnership transactions. No part of plaintiff’s cause of action accrued during the partnership between plaintiff and defendant. Defendant admitted that he purchased the wheat before the formation of the partnership, and that he borrowed the money after its dissolution. These two items covered plaintiff’s cause of action. The only testimony relative to partnership matters, admitted by the trial court concerned items set up in defendant’s counterclaim and the claimed payment for the wheat, and the defendant first adduced testimony to support them, hence it does not lie in his mouth to complain of an error that he himself caused the court to commit, if it be error; and if it was error, then it was harmless, because in the specific findings of fact the judgment clearly shows that the court did not into consideration any of the partnership matters. It is true defendant objected to plaintiff testifying that certain items contained in defendant’s counterclaim pertained to partnership transactions; but this was competent evidence and properly admitted. An unsettled partnership account between plaintiff and defendant can not be pleaded as a counterclaim to an action at law. Berthold v. O’Hara, 121 Mo. 88. One partner may maintain an action at law against the other partners or any of them, for moneys advanced, or paid, or contributed at their request, for their separate and distinct account and benefit. Story on Partnership [4 Ed.], p. 352, sec. 219. See, also, Berthold v. O’Hara, 121 Mo. 88. Appellant assigns as second error: The finding of the court was against the undisputed evidence. Defendant admits purchasing the wheat prior to the partnership between plaintiff and defendant, and that he borrowed the money after its dissolution, but insists that he paid for the wheat by transferring stock in the mill and an account against Gladden to the use and benefit of the firm of which he was a member, the testimony of defendant is conflicting as to his asserted payment, and the payment is positively denied by the plaintiff. It is shown by the evidence of plaintiff that in an effort to arrive at a partnership settlement, the amount of the mill stock was claimed as a credit due defendant on the partnership account, and this fact is not controverted by defendant. Where there is a substantial conflict in the evidence as to the only issue presented, the appellate court is precluded from interfering with the judgment. Thompson v. Oth, 67 Mo. App. 643. The court found for the plaintiff the amount of his claim, $199, less $98.20 found due defendant on his counterclaim. The testimony of defendant amply supports the judgment. A jury being waived, the court was the sole judge of the credibilty of witnesses. No declarations of law were asked, no error was committed, and the judgment ought to be affirmed.
    J. B. McG-uefin and Job Eb,ench for appellant.
    Under the first error complained of it is maintained by appellant that the court erred in permitting the plaintiff over objections of defendant to enter into the partnership matters which it was conceded had never been settled between plaintiff and defendant. See evidence of plaintiff Jed Carlin, page —. A justice of the peace has no jurisdiction of an action of one partner against another in respect to partnership matters, prior to a settlement between them. Newberger v. Freede, 23 Mo. App. 631. It is settled law that an action of one partner against another, or an unsettled account is purely an equitable action and a justice of the peace has no jurisdiction. Rankin v. Fairly, 29 Mo. App. 587. It is not pretended that there had ever been any settlement of the partnership matters between plaintiff and defendant, and the court erred in permitting plaintiff to introduce evidence of the partnership matters. ■ Since the circuit court tried the case and had no right to admit testimony other than would have been admissible before the justice It is clearly apparent that the invoice of stocks in the mill taken at the time of the formation of the partnership went to pay for the wheat or any prior indebtedness that Haynes might owe- Carlin. This fact is still more clearly demonstrated and proven by the statement or balance sheet furnished by Carlin’s attorney to Haynes before commencement of this suit. See statement on page — abstract. No mention is made of this wheat indebtedness. Under the second error complained of the court evidently committed error in his finding, the same being against, the clear evidence in the case. And we are at a loss to know upon what theory, or course of reasoning the court rendered judgment against the defendant in this case. When we follow the evidence of both the plaintiff and the defendant, no such verdict can be arrived at, and all the evidence being preserved the appellate court will interfere to correct such errors. There is no evidence to support the finding of the court. The judgment is for the wrong party and should be reversed.
   Bland, P. J.

— This suit originated before a justice of the peace on the following account:

Purdy, Mo., Jan. 19th, 1897.
W. Gh Haynes to Jed Carlin, Dr.
To 186 bushels and 21 lbs. wheat at 80 cents per bushel, May 27th, 1895.................................................$149.00
To interest on same from May 27th, 1895....................... 14.00
To money loaned December 7th, 1895......................... 50.00
To interest on same.......................................... 3.25
$217.15

After taking a change of venue the defendant filed a counterclaim of $140 for chopped feed, drayage and hauling, and for accounts assigned by the defendant to plaintiff. Plaintiff recovered judgment before the justice, from which defendant appealed to the circuit court. In the circuit court the cause was tried before the court without a jury. Plaintiff again recovered judgment, from which, after an unsuccessful motion for new trial defendant appealed.

On the trial the defendant admitted that he purchased $149 worth of wheat on May 27, 1895, and that he afterward borrowed $50 in money of him. On these admissions plaintiff rested his case. The defendant to sustain his counterclaim testified that on August 1, 1895, he and the plaintiff went into partnership in the mill business, and that when the partnership was formed he paid plaintiff $138.48 in stock in the mill, and that he had let plaintiff have mill feed and done hauling for him and transferred to him account from February 8, 1896, to September 8, 1896, amounting to $136, no part of which had been paid. The witness went into the terms of the partnership, giving invoice of stock, etc., on hand and stated that the wheat he got from plaintiff was paid for by stock in the mill, and further showed that a great part of his counterclaim arose out of the partnership business, which it appears has never been settled.

The court seems to have taken into consideration all matters in dispute between the parties and found on an adjustment of their individual and partnership accounts that defendant owed the plaintiff $100.80. The defendant complains of this action here. It is well settled that an action at law by one partner against another on an unsettled partnership account will not lie. The plaintiff’s account is not such an action. The wheat was sold to defendant before the partnership was formed, and the $50 was loaned to him after it was dissolved. It was the defendant who introduced by his counterclaim and by his evidence the unsettled partnership affairs between plaintiff and defendant, and this, too, over the objections of plaintiff. A party to a suit can not invite error, consent to error on the trial of a cause and afterward be heard to complain of such error on appeal. He can not introduce irrelevant evidence and afterward complain that the court erred in permitting him to do so. The finding of the circuit court is not unsupported by the testimony in the case, as contended by appellant; on the contrary, we think the judgment under the evidence is for the right party, and we affirm it.

All concur.  