dissenting, said:—
The supreme court (75 Mo. 89) has declared that Bassett and Henry were partners.
Matters at law are all settled against Bassett, and at law he is a judgment debtor to Henry for the full amount of the judgment. But he has come into the *561forum of equity and prays that all legal technicalities be cast aside and to have such relief granted him as fairness and good conscience will suggest.
The evidence shows that he did not pay back money to the township as a return of the seven thousand dollars’ fee which he and Henry had’bound themselves to return, but that he turned over in discharge of such obligation four one-thousand dollar bonds of the township, which, at face value, with accrued interest thereon, amounted to seven thousand dollars (less $4.67 which he paid in cash). Bassett bought these bonds, being of the same issue he and Henry were defending for the township, at ten cents on the dollar, for the purpose of turning them into the township in discharge of his obligations to that effect if a liability should accrue thereon. He only paid four hundred dollars in money for them.
In my opinion, one-half of this sum and interest thereon, and one-half the small sum he paid in addition to the bonds, is all that he should be allowed against the judgment he seeks to enjoin by the proceedings now before us.
That Bassett is only entitled to an injunction to. the extent of the money he is out strikes me as a proposition apparent by its statement. It may be demonstrated : Suppose, instead of turning in bonds, he had compromised with the township by paying to it, in cash, ten cents on the dollar of the amount of the fee ; would he be allowed one hundred cents on the dollar in this proceeding ? The contention is that Henry ought not to collect the judgment he has obtained for his half of the fee, the whole of which Bassett had collected, for the reason that since the rendition of the judgment, Bassett had paid the fee back to .the. township in response to his and Henry’s bond to that effect. But the fact is, he has not paid it back ; he has turned over bonds which the township has accepted in lieu of it; *562bonds which he purchased while a partner, for this purpose and when he had the partnership money in his hands.
Suppose when Bassett collected the fee from the township, he had immediately paid Henry’s share over to him, and then afterwards having settled with the township, he had sued Henry for the share he had paid him, on the ground that he had been compelled to return the fee ; what would have been the measure of his recovery? Unquestionably it would have been one-half the amount he paid as a settlement with the township. If he settled or compromised at ten per cent., one-half of that sum; if he' settled at one hundred per cent., one-half of that sum. The rights of the parties in this pi’oceeding are exactly as if the last supposition had transpired in fact. Bassett paid only four hundred dollars for the bonds which he turned into the township at seven thousand dollars. One-half, too, of this four hundred dollars, it is fair to assume, was Henry’s money, for it was while Bassett had the whole of the seven thousand dollars in his possession that he bought them. But aside from this, all the bonds of this issue, of which those Bassett bought were a part, though held valid, by a then recent decision of the supreme court of the United States, were at the time of Bassett’s settlement with the township, only worth sixty-five cents on the dollar, including accrued interest to October, 1885, and all, except those turned in by Bassett, were at about that time refunded at that rate. He is thus allowed by his settlement near twenty-five hundred dollars more for the bonds he turned in than they were worth and more than the rate at which the township settled all the others of the same issue.
The case may be stated thus: Bassett and Henry were full and equal partners in this transaction. In 1876 Bassett collected of their client the full fee due the partnership. He retained and used the whole of it, *563less four hundred dollars paid for the bonds and less other expenses which were allowed him in the judgment, for ten years; but on account of having paid out four hundred dollars, one-half of which, of course, was for himself, he asks, as a matter of fairness, conscience and equity, that it be made to operate as a payment and satisfaction of a judgment for more than two thousand dollars.
The principle or reason which will sustain the opinion of my brethren would operate as a satisfaction of Henry’s judgment, though Bassett had paid but a single dollar in liquidation of his and Henry’s obligation to the township, or, indeed, if the township had cancelled the obligation without any payment.
The result of the partnership relation between these parties, which is covered by the strict rules which govern other trustees, they occupying that relation to each other (Pomeroy v. Benton, 57 Mo. 531) is that Bassett gets the full fee of seven thousand dollars, less his expense account, and his partner does not get anything. I am not able to concur in the conclusion to which the other judges have arrived.