Wilcox v. Pratt — 23 N.Y. St. Rep. 689

Majority

p. 689

Joseph H. Wilcox and ano., Resp’ts v. Harriet Pratt, App’lt.

(Supreme Court, General Term, Fourth Department

Filed May 12, 1889.)

Headnote

1. Co-partnership—When aid of court op "equity may be invoked.

The defendant, owning a certain number of acres of land, entered into-a contract with the plaintiff, W., for the purpose of cutting the timber thereon and making sales, with a mutual agreement in writing that the respective parties should each contribute certain sums of money, and carry forward the contemplated enterprise therewith. It was further provided that after the defendant had been paid certain specified sums from the proceeds of the sales, she was to convey to plaintiff an undivided half of the tract. The parties entered upon the execution of the business contemplated. When about one-half the timber was cut, the defendant served upon plaintiff a notice to the effect the co-partnership existing was-dissolved. Since the commencement of the action, the defendant has had exclusive control over all the assets, and has excluded plaintiff from all connection with or control over the business. Held, that the conduct of defendant warranted plaintiff in seeking relief from a court of equity, and that a proper case was made for the appointment of a receiver.

3. Same — Eight op one partner to exclude other prom partnership BUSINESS.

Held, that the transfer by the plaintiff, Wilcox, to the plaintiff, Miller, of part of his interest, and the pledging of the other part thereof to him as collateral security, did not warrant defendant in excluding him from “ all connection with or control over said partnership, property or business.”

Appeal from a judgment entered in Lewis county, upon a decision made at special term, held in that county.

Walter Ballou, for app’lt; C. D. Adams, for resp’ts.

Upon the evidence produced before the trial court, it is very evident that the case was one for equitable cognizance. Whiton v. Spring, 74 N. Y., 169 ,

Defendant, owning 15,225 acres of land in the county of

p. 690

Herkimer, entered into a contract with the plaintiff, Wilcox, for the purpose of cutting the timber thereon and making sales, with a mutual agreement that the respective parties should contribute money and carry forward the contemplated enterprise with the respective sums of money mentioned in the contract. Wilcox was to advance $5,000 and the defendant was to advance $20,000 in money or credit, for the purpose of carrying on said business. _ It was provided in the contract, viz., “that all expenses incurred in cutting, removing, selling and disposing of such timber, bark and spars and spiles, together with interest on all moneys received as advances, and all indebtedness incurred •connected with, or growing out of, said business, including all taxes assessed, or which may hereafter be assessed thereon, shall be paid in full from the proceeds of such sales, and as soon as said several sums shall be paid in full, together with the sum of $26,000, with interest thereon from the date hereof, from the proceeds of such sales as aforesaid shall be paid to the said Harriet Pratt, then and in that case said Harriet Pratt agrees to convey to said Joseph H. Wilcox, by good and sufficient deed, an undivided one-half part of said tract of land.”

The plaintiff Wilcox and the defendant entered upon the execution of the business contemplated by their agreement, and carried it forward until in January, 1888, the plaintiff giving “ his services and attention to the detail thereof, and it was so conducted and carried on by the parties jointly.”

On the twelfth of January the defendant served upon Wilcox a notice “that the copartnership heretofore existing between Harriet Pratt and Joseph H. Wilcox has been -dissolved, and the business will hereafter be carried on by her ”

It is found, as a fact, that the defendant “has had the exclusive possession and control of all the personal property and assets of said firm of Pratt and Wilcox down to the commencement of this action, * * * and has excluded the plaintiff from all connection with, or control ■over, said partnership property or business, and absolutely refused to allow him to participate in said business or in conducting and carrying on the same in any manner what - ever.”

It appears that about one-half of the timber growing on the lands at the time the contract was entered into has been cut off, and the remainder is standing thereon.

We are of the opinion that the conduct of the defendant ■warranted the plaintiff in seeking relief from a court of equity, and we think the language used by Roger, Ch. J., in King v. Barnes ( 109 N. Y., 285 , 15 N. Y. State Rep., 52), is pertinent to the case in hand. He said: “ It is

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entirely immaterial whether this agreement constituted a partnership in a technical, legal sense, or whether it was a joint enterprise to be conducted by the parties for their mutual benefit. So far as their rights and liabilities are concerned in this case, the result is the same, and rests upon the express terms of the agreement, and they are now to be enforced upon the principles applying to partnership transactions. Dyckman v. Valiente, 42 N. Y., 549 .”

We think a proper case was made for the appointment of a receiver, and the proper directions were given to him. in the premises. Heatherton v. Hastings, 5 Hun, 460 .

In Hubbell v. Buhler ( 43 Hun, 84 ; 6 N Y State Rep., 578), it was said that where there was an agreement for a joint adventure, “it must necessarily be implied that the understanding was that the partnership or joint adventure, was not determinable at the will of any one of the partners, but that it was to continue until the single enterprise undertaken should be concluded.” That case differs very essentially from the one before us.

Second. We are of the opinion that the transfer by Wilcox of a part of his interest to the plaintiff Miller, and the pledging of the other part thereof to him as collateral security, did not warrant the defendant in excluding the plaintiff Wilcox “from all connection with, or control over, said partnership property or business,” as found In the fourteenth finding of the trial court. In partnership cases, a disagreement among partners has often been the occasion for the appointment Of a receiver, with directions to carry on the business, or to close it out according to the best interests of the parties concerned. Marten v. Van Schaick, 4 Paige, 479; Jackson v. De Forest, 14 How. Pr. Rep., 81 ; Smith, v. N. Y. Stage Co., 18 Abb., 433 .

Third. We are of the opinion that the facts appearing upon the trial warranted the exercise of the judicial discretion of the court, in the direction which it took in awarding the costs of the action to the plaintiffs.

Judgment affirmed, with costs.

Martin and Merwin, JJ., concur.