6 Fla. 142 | Fla. | 1855
delivered the opinion of the Court.
The first point that arises in this cause and upon the decision of which mainly depend many of the positions of law, assumed by the Counsel of the appellant, involves the inquiry as to the character of the tenure, by which several individuals may hold title to merchant ships or steamboats ; in other words the relation which the several individuals hold to each other, in respect to the ownership of that particular species of property.
All writers upon the subject of commercial and maritime law concur, that as a general rule, merchant vessels employed in navigating the ocean (and we have discovered no exception in respect to steamboats plying on the waters of the interior rivers and lakes,) are held in tenancy in common, and not in joint tenancy, and thereby withdrawing that particular species of property from the operation of the law of “ Partnership.” In confirmation of this being the general rule on the subject, it is laid down in the books that “ a ship is a chattel of which the owners are possessed as tenants-in-common ; though if it be conveyed to them at one and the same time, and by one instrument, they are more properly joint-tenants, without benefit of survivorship.” (Coll. on Part., Sec., 1185, Perkins Ed.)
Judge Story in his treatise on the law of partnership, (§ 411,) cohcurs in the doctrine thus : “Property in a ship
This however is to be taken as the enunciation of a general rule, and not as a universal principle, and like all general rules subject to exceptions. In this the authorities all agree. Collier in announcing the rule, limits it thus i “ But a ship as well as other chattels, may be held in strict partnership, with all the control in each partner incident to . commercial partnership.” Coll. on Part., § 1186, Perk. Ed.
Judge Story qualifies the doctrine by stating it to be so “in the absence of all positive stipulations to the contrary,” (Story on Part., § 417) and thereby tacitly admits that the general rule may be modified by the contract or agreement of the parties. Chancellor Kent also recognizes the exception, and with his usual clearness, has stated the distinction between part ownership and
In Harding vs. Foxcroft, 6 Greenl. R., 77, Mellen Chief Justice said, “ there may be a partnership as well as a cotenancy in a vessel. When a person is to be considered as a part owner and when as a partner in a ship, depends on circumstances. The former is the general relation between ship owners, and the latter the exception, and it is required to be shown specially.” In Philips vs. Purvington, (15 Maine, 427,) Shepley, J., remarks, “it is contended that they were not partners but tenants iii common of the vessel. Such is the usual relations of part owners, but they may become partners.” In the case of Lamb et al., vs. Durant, 12 Mass. R., 60, Parker, C. J., says, “ vessels Owned by a copartnership are certainly effects of the partnership and not unfrequently the principal effects. Occasion for selling them frequently arise in the course of business, and notwithstanding they are common
Upon the authority of the decision, in the case of ex parte Young, 2 Vesey and Beam., 242, which was decided by Lord Eldon, and the effect of which decision according to Mr. Collier, was to over-rule Lord Hardwicke’s opinion in the case of. Dodington vs. Hallet, 1 Vesey, 497. Chancellor Kent decided the case of Nicoll vs. Munford. In delivering his opinion in that case he says, in allusion to the decision of Lord Hardwicke, “ I dare not therefore follow a case which has never had effect, and has been so authoritatively exploded. The cases which have been referred to, are in point against the allowance of any partnership claim, or taking an account on the foot of any partnership in the vessel.”
' With all proper deference and respect for the opinions of Mr. Collier and Chancellor Kent, the former of whom asserts that the decision of Lord Hardwicke had been “expressly over-ruled,” and the latter that it had been “authoritatively exploded,” we are inclined to think that the language used in respect to the effect of that decision, is too strong. The language adopted by Lord Eldon in delivering his opinion in the case of ex parte Young, seems to us expressly to decline to over-rule the case of Dodington vs. Hallet, for he says, “ the difficulty in this case arises upon the decision of Dodington vs. Hallet by Lord Hardwicke, which is directly in point. That case is questioned by Mr. Abbot, who doubts what would be done with it at this day,
But whatever may be the effect to be given to Loi'd Eldon’s opinion, it is very certain that Chancellor Kent, who based his decree in the case of Nicoll vs. Munford, upon that opinion was reversed upon a review of that case in the Court of Errors of New York, Munford vs. Nicoll, 20 John R., 611.
It is not at all improbable that the apparent difference which seems to exist between Lord Hardwicke and Lord Eldon on this subject, has grown out of a misapprehension of the extent to which the former intended to be understood as having gone, in his decision of the case of Dodington vs. Hallet;
The result of our investigations is that as a general rule, the several owners of a merchant vessel or steamboat, hold their j respective interests as tenants in common, and not as copartners, and consequently are to be governed by the rules of law applicable to that species of tenure ; but
Applying the principle to the present case, and we are very clear in the opinion that the Appellant and Appellee as part owners of the Steamboat Quincy, held their respective shares in the same, not as tenants in common, but as copartners.
There is no evidence in the record of an express agreement between the parties that their respective ¡interests in the boat was to be held in strict partnership, but originating as these interests did out of a copartnership business and being subservient thereto, by the express terms of the agreement entered into between them in reference to that business, we do not see how it can be looked upon as an interest outside of that partnership. For a correct understanding of our views on this point we give the written agreement alluded to, in licec verba, which may be found in the record, and noted as “ exhibit A.” :■—
STATE OF FLORIDA, County of Franklin.
This agreement made and entered into between Henry Allen of the State aforesaid, and Nelson Hawley, of the aforesaid State and County of Gadsden, witnesseth, that the said Henry Allen and Nelson Hawley, being jointly interested in a contract with the United States, for carrying the mail for four years, commencing on the first day of July next, upon the Apalachicola River, between the city of Apalachicola and Chattahoochee on said river, known as route No. 3523, all in the aforesaid State ; and in order to carry out the aforesaid contract, do agrée that the said Henry
It will be perceived by reference to this paper that the parties had become “ jointly interested in a contract with the United States for carrying the mail for four years” upon a certain mail route, and they mutually agree to furnish, each a certain amount of cash, for the purpose of purchas
But should we be in error on this point, there is one other view of the subject, that to our minds is unanswerable. It will be remembered that the cash contributed by the two parties, in equal portions, amounted to the sum of only six thousand dollars, and that the entire cost of the boat was about fifteen thousand dollars.
The excess of cost, as is made to appear by the record, was secured by a lien on the boat, (in virtue of one of the stipulations of the contract) and that the same was eventually paid off and discharged from the nett earnings of the boat. Now in none of the authorities cited for the Appellant, is it for a moment doubted that although the vessel itself may be under the operation of the strict technicalities of a tenancy in common, yet that the proceeds of the cargo or adventure, is subject to the law of partnership.— If this be so, then the case before us is one in which partnership funds have been invested in the purchase of a certain species of property ; and it is only necessary to refer to the books to see the effect and operation of such a transaction. The discussions which have occured in respect to the different rules which obtain in the respective cases of partnership and tenancy in-common, have grown out of the
The case of Fry vs. Hawley, 4 Fla. R., 258, has also been referred to as an authoritative adjudication of the point now under discussion. We have looked very carefully into that case, and think that the counsel has misapprehended the extent of that decision. The point now under consideration did not arise, even incidentally, and it was therefore unnecessary that it should have been decided; nor do we find in the opinion, even a. dictum, which would support the assumption of the counsel. In that case the Court only decided that the transaction between Hawley and Fry, did not raise a partnership between the three Allen, Hawley and Fry, (there being no privity between, Hawley and Fry,) and left the question as to the relation existing between Allen and Hawley, growing out of the terms of the contract for carrying the mail, and the circumstances connected with the building of the boat, wholly untouched.
Having thus determined that the steamboat Quincy, is to be'considered as partnership property, and as such property, within the jurisdiction of the Court of Chancery, it now only remains for us to determine upon the propriety of the several interlocutory orders which have been entered in the progress of the suit now pending between the parties ; and which (under the provision of the statute) have been appealed from by the defendant below.
The bill of complaint filed in this cause purports to be by one partner, against his copartner, and contains the usual prayer for account of the profits of the boat, and that she be sold, which is accompanied by the further prayer for the appointment of a Receiver and for the issuing of a writ ofinjunction, “ to restrain the said Allen from further possession or interference with said boat, or its proceeds, or from collecting any debts, dues or demands due the same, or from selling or disposing of his said part of said boat.” The bill appears to have been filed on the 10th day of September, 1851, and the writ of injunction, in accordance with the prayer, granted on the same day, but not executed until the lltb/day of February, 1852.
In Adams Eq., 641, (margin 37,) the law regulating the granting of an interlocutory injunction is thus stated :—. “ The grants of the interlocutory injunction isdiscret ionary with the Court, and depends on the circumstances of each case and on the degree in which the defendant or plaintiff would respectively be prejudiced by the grant or refusal.” And again at page 639, (margin 335,) an injunction is granted to restrain a defendant, so long as the litigation continues, from doing acts productive of permanent injury, or from proceeding in an action at law, where an equity is alleged against his legal right. On the same page the author further remarks : “ The ordinary mode of obtaining this injunction, is by moving after notice to the defendant ; but in particular cases where giving notice might accelerate the mischief, it will be granted ex parte, and without notice, e. g. in cases of waste, or of negotiating a bill of exchange ; and even where that special ground does
The injunction in this case was granted on motion, and it does not appear that any notice of the application wras given to the opposite party; and we think that the circumstances sworn to in the bill, made it just one of those cases contemplated by the law, in which the notice might be dispensed with, viz: where .the very giving of the notice might in all probability “ accelerate the injury.”
It will be further noted, that the peremptory requisition contained in the statute above cited, is limited to applications “ to stay proceedings at law," and in all other cases we presume, that the practice of the High Court of Chancery of England will prevail, where it does not conflict with the rules of Court.
Upon an examination of the record, (for we had no argument from the counsel on this matter of the appeal,) we do not find any error in the order granting the injunction, and do therefore affirm the same.
The second ground of appeal is from “ the order appointing the Receiver.”
The law in regard to the appointment of a Receiver, in
Collier says: “where a dissolution is intended, or has already taken place, a Court of Equity will appoint a Receiver, provided there be some breach of the duty of a partner, or of the contract of partnership.” (Collier on Part., Perkins Ed., 354.)
In New York, it is a matter of course to appoint a Receiver, if the parties cannot agree among themselves, as to the disposition and control of the property, upon a bill filed by one of the partners, to close up the partnership concern. Martin vs. Van Sharick, 4 Paige 479, Innes vs. Lansing, 7 Paige, 583.
So a Receiver will be appointed as a matter of course, where either partner has a right to dissolve the partnership, and the articles of partnership do not provide for the settlement of the concern, upon a bill filed for that purpose. Law vs. Ford, 2 Paige, 210. In Skip vs. Harwood, a Receiver was appointed of the brewery. It was ordered that it should be referred to the Master, to appoint a proper person to be a Receiver of the stock, goods, &c., of the brewery trade, and the debts due the partnership.— And in the meantime that the defendants to be restrained from alienating, disposing of, or removing any of the uten
A Receiver was appointed of a steamboat, where the owners disputed and required the Court to settle their rights, and such Receiver was required to run the boat. This was done for two years in the case of the steamboat ‘Ontario,’ but in that case the Court observed that it was highly inconvenient, and unfit that such operations should be conducted under the direction of the Court for so long a time ; and an order for sale was accordingly made. (Crane vs. Ford, 1 Hopkins R., 114.) In this latter sentiment of the Court, we fully concur. As it is not the province of the Court to create a copartnership, so it is equally foreign from its functions to conduct its business. It never could have been contemplated, that a Court of Chancery, should become the superintendent of the private affairs of individuals,—‘its legitimate province is to adjust the rights, and settle the disagreements of parties, growing out of such transactions.
From the examination which we have made of the authorities on this subject, we think the law may be considered as settled, that whenever the intervention of a Court of Equity becomes necessary, in consequence of dissensions or disagreements between the partners, to effect a settlement and closing of [the partnrship concerns, upon bill filed by any of the partners, showing either a breach of duty on the part of the other^partners, ora violation of the agreement of partnership, a Receiver will be appointed as a matter of course.
The first three points made by the Counsel for the Appellant in his argument upon this branch of the case come clearly within and fully sustain the rule as thus laid down
But it was further contended by the Counsel that the property having been taken possession of by the Complainant, and being at the date of the application- for the appointment of the receiver, in his actual possession, it was absurd and contrary to all precedent, that he should ask to have himself deprived of that possession. It is only necessary to advert to the facts of the case, as they appear in the record, to show that the application for the appointment of the receiver, is not obnoxious to the charge of inconsistency or impropriety. By the terms of the written agreement herein before set forth, the right of the possession of the boat was guaranteed to Allen. By virtue of that right, he had taken the Boat to Bainbridge, in the State of Georgia, as a safe place to lay her up during the Summer. While there, and in the absence of Allen, who had gone on a visit to the North, as he says, for the benefit of his health, the boat was levied upon by virtue of a writ offieri facias, issued out of the Inferior Court of Early county, in the State of Georgia, and advertised for sale. For the purpose therefore of protecting the joint-interest of the concern, Hawley, as one of the parties in interest, proceeded to Bainbridge, paid off the execution, and, doubtless fearing a repetition of the same thing, took possession of the boat and removed her out of the jurisdictional limits of the State of Georgia. In this whole transaction we see no evidence of any design or intention on the part of Hawley to assert any adversary right of possession to that acquired by, and belonging to Allen, under the terms of the written agreement before referred to. We think it therefore unfair to assume that Hawley had the absolute possession of
The next position assumed by the Counsel was, that a Court of Chancery has no power to appoint a receiver to carry on the business of a copartnership.
In this we fully concur, as a general proposition of law, and to ascertain its applicability, it becomes necessary to examine the terms of the order granted in this eause.
The order is in the following words, to wit; “ It is further ordered that Archibald T. Bennett be and he is hereby appointed Receiver, to take charge of the Steamer Quincy, to prevent injuries from waste and decay and other casualties as far as may be practicable—to repair said boat so as to put her in condition for sale or such disposition of her as may be ordered by the parties, or as the Court may order. The expense of repair and the like to be re-paid by proper use of said boat.” There is certainly nothing in the terms of the order from which it can be gathered that it ever was the design or intention of the Court to invest the Receiver with authority “ to conduct the business of the partnership.” The assumption, we presume is based upon the last clause of the order, which directs that, “ the expense of repair and the like, be re-paid by proper use of said boat,” but we do not think even this clause, upon any fair principle of interpretation, will bear such a construction. It was evidently the design of the order, to relieve the copartners from the charge, by causing the boat to reimburse the outlay for repairs ; and thus limited, it was altogether consistent with the strictest propriety. If the receiver has either exceeded or abused his authority as defined by the terms of the order making the appointment, and injury or damage has
The sixth, seventh, eighth and ninth positions assumed by the Counsel in his argument on this branch of the subject, are already disposed of by the view which we have taken of the character of the title to this property, viz: that it is not a tenancy-in-common, but a strict partnership.
Applying then to the case,'the rule which we have herein laid down in regard to the appointment of a receiver, and without going into an enumeration of the various charges set forth in the bill of the complaint, we are constrained to say that the case presented, strongly demanded of the Chancellor, the interposition of his power, to make the appointment.
.The third ground of appeal mentioned in the Appellant’s petition is, from, “ The Order of Sale of the Boat Quincy.”
The entire argument of the Appellant’s Counsel upon this branch of the case, proceeded upon the assumption that the parties held their respective interests in the boat as tenants-in-common and not as copartners. As before Ob': served, any argument made upon this hypothesis and the authorities cited in support thereof, become wholly inapplicable, from the decision which we have heretofore arrived at in considering the main question. There was no exceptions taken in the argument to the terms of the order. The only objection alleged in support of the appeal, was as to the authority of the Court to grant the order.
In Adams’ Equity 461 (margin 245) the law on this subject is thus laid down: “In order to effectuate the realization of assets, the payment of debts and the distribu
There are many cases in which a Court of Equity will assist the settlement of partnership accounts, by decreeing in the first place a sale of the property. Where no provision is made for the disposition of the partnership property upon a dissolution, this exertion of equitable jurisdiction seems to arise necessarily, from that general principle, that the retirement of one partner is the dissolution of the whole society. (Coll. on Tart. § 307.)
“ It appears therefore, that in all cases of a partnership at will, whether the contract was originally of that nature or has become so by effluxion of time, or other circumstances, a Court of equity will, upon a dissolution, decree a sale of the partnership effects, at the desire of the parties.” ib., § 313. Upon a proposition so plain however, we deem it unnecessary to multiply authorities, and conclude on this branch of the case, by sustaining the propriety and validity of the order granted by the Chancellor.
The fourth ground of appeal is from “ the order refusing to dissolve the injunction and vacate the order appointing the Receiver.”
The injunction in this cause, was granted before answer; and the general rule of practice in such cases, is to dissolve the injunction where the answer fully denies all the' circumstances upon which the equity of the bill is founded. Hoffman vs. Livingston, 1 John. Ch. R., 211; Livingston vs. Livingston, 4 Paige Ch. R., 111 ; Wake-
But there is no inflexible rule to this effect, for the granting or continuing of the injunctions, must always rest in the sound discretion of the Court, to be governed by the nature of the case. This doctrine has been fully recognized and authoritatively established by this Court, at its present term, in the opinion delivered in the case of Carter vs. Bennett, and is amply supported by the authorities therein cited. See also the following precedents :
Roberts vs, Anderson, 2 John Ch. R., 204 ; Poor vs. Carleton, Summer R., 70 ; Bank of Munroe vs. Schermerhorn, 1 Clarke R., 303.
In the ease before us, although the equity of the bill is denied by the anwer in terms, yet it shows a state of circumstances which raises strong equities; and we think it would have been improper to have’"'granted the motion for a dissolution of the injunction. And we are equally clear in the opinion, that the motion to vacate the appointment of the Receiver, ought not to have been granted.
The fifth and last ground of appeal, is from “ the order for the distribution of the fundsarising from the sale of the Steamboat Quincy.”
Upon this head the record affords but very meagre information. There is nothing but the bare order, setting forth the names of the several distributees, with the amount due to each, and as there was no objection made in the argument to the correctness of these claims/ we are to consider them as admitted to that extent. We understand, however, the position of the counsel for the appellant to be this, that the debts having accrued through the action of
This disposes of the several grounds of appeal set forth in the appellant’s petition of appeal, and it now remains for us only to remark briefly upon the general aspect of the case as presented by the record. It is quite apparent that the issue of this controversy has resulted most disas. trously to the interests of both of the parties, causing as it has the total absorption or waste of the entire property. This result might and ought to have been avoided, if that spirit of amity and good faith, which should always characterize the intimate and confidential relation of co-partners, had been properly observed. The hardship com
The opinion of the Court is, that the appeal be overruled, with costs ; that the several interlocutory orders appealed from, do stand affirmed, and that the cause be remanded to the Court below, for such further proceedings not inconsistent with this opinion, as may be appropriate.