Westerfield v. Price — 30 N.Y.S. 356

Majority

p. 356

(80 Hun, 401.)

WESTERFIELD v. PRICE.

(Supreme Court, General Term, Second Department

July 27, 1894.)

Headnote

Partnership—Accounting.

In an action for an accounting, brought by a member of a pool formed to speculate in lands, defendant cannot be charged with plaintiff’s- contribution towards the purchase of lands bought for the pool by defendant in his own name, where plaintiff’s interest therein was never denied, and, though he knew how the title was held, he had never demanded a conveyance.

Appeal from judgment on report of referee.

Action by Margaret G-. Westerfield, as executrix, substituted in place of her testator, Joseph H. Westerfield, the original plaintiff, who died on December 24, 1891, against Henry F. Price, as administrator, substituted in place of his intestate, William M. Price, the original defendant, who died on December 13, 1887, for an accounting. There was a judgment in favor of plaintiff, and defendant appeals. Reversed.

Argued before BROWN, P. J., and DTKMAN and CULLEN, JJ.

R. Burnham Moffat, for appellant.

Edward H. Westerfield, for respondent.

This is an appeal from a judgment in favor of the plaintiff, entered upon the report of a referee. The original parties to this action, testator of the plaintiff and the intestate of defendant, with others, in 1865 entered into a pool or joint speculation for the purchase and sale of oil lands and options thereon. The plaintiff’s testator was to have a fourth interest, and the defendant’s intestate was to be manager of the pool. Jayne, a clerk of Price and his partner, O’Neill, was sent to West Virginia to purchase the land. He bought some options, and in two instances the fee of the land outright. Plaintiff’s testator was furnished with two statements of the outlay by Jayne, which, however, did not enumerate the property acquired, and paid Price his quarter of such expenditure. Shortly after, the bubble burst. The options were suffered to lapse, and the pool was left with the two pieces of real estate in West Virginia its only assets. The title of one of these pieces was first taken in the name of Jayne, and then subsequently convéyed to Price. The title of the other piece, a tract of 25 acres, was taken in the name of O’Neill and Price. Both pieces still remain unsold. In 1886, Westerfield brought this action against Price for an accounting. It is unnecessary to review the details of the account, as the referee has found that all the moneys contributed by the plaintiff were applied to the purposes of the copartnership or pool. But he has charged the defendant with $375,—plaintiff’s contribution of one-quarter to the cost of the 25-acre plot,—because the title to that plot was taken in the name of Price and O’Neill, and the propriety -of the decision as to this item is the only question in dispute on this appeal. We are of opinion that the learned referee erred. His decision in regard to this tract of 25 acres was in direct conflict with his decision as to the other tract. The latter tract stood in the

p. 357

name of Price and O’Neill. The plaintiff was entitled to own a one-quarter in these lands. The theory upon which the defendant was charged with plaintiff’s contribution to the 25-acre purchase was that, the title standing partly in the name of O’Neill, there could be no accounting as to that tract in an action to which O’Neill was not a party, and that the heirs of Price could not convey to plaintiff the legal title to his share. We cannot see why the heirs of Price, holding title to an undivided half, could not convey to the plaintiff an undivided quarter. But we think the whole theory erroneous. Plaintiff was given a receipt from O’Neill and Price, showing that he had a quarter interest in the lands acquired. These-lands were acquired, not to hold, but for speculation, for quick sale. Price was to be the manager of the pool. Assuming (which I am not prepared to concede) that the legal title should have been taken in the name of all the parties in interest, Westerfield knew from Price’s letters that the title was not so held. Westerfield never asked for a conveyance of his share. Though he appears to have been anxious for an actual partition, which Price opposed, and there were negotiations between the parties for that purpose, Price never repudiated the trust or denied plaintiff’s interest. The referee has expressly found that this tract was purchased for the pool or partnership. We see no principle on which the plaintiff can now disclaim that purchase, and no obstacle which will prevent him obtaining his full share or interest in the lands. The judgment appealed from should be reversed, and a new trial ordered; costs to abide event All concur.