83 W. Va. 620 | W. Va. | 1919
These eases involve the settlement of two alleged partnerships. The same parties were interested in each of the businesses involved, and the cases were heard together in the court below. The questions arising are somewhat related, and the testimony in many instances is applicable to both cases, for which reason we will consider them together.
We are met at the threshold Avith a motion to dismiss these appeals for failure to print the record as required by law, and it is also suggested that the brief for appellants, does not comply with our rules in that it does not contain a summary or digest of the evidence in narrative form, for which reason; it is suggested we should not consider the assignments of error made by appellants. The records are voluminous, con
The parties to these suits are Italians. The plaintiff Bene-detto married a sister of the two defendants, Venanzio Di Bacco and Salvatore Di Bacco. Benedetto is somewhat older than his brothers-in-law, and came to this country prior to their immigration. In 1904 he was established in a small mercantile business in the town of Thomas. His brothers-in-law had been in this country for some little time, and had accumulated from their earnings a small amount of money. It does not appear that this mercantile business was particularly profitable. During this year of 1904 Benedetto admitted his
In the year 1906, while the mercantile business above referred to was being carried on, as the plaintiff contends by all three of them as partners, and as defendants contend, by the two Di Baeeos as partners, the parties determined to en
Again, Benedetto complains that Yenanzio Di Bacco withdrew from the business liquors and other supplies for himself, and did not charge them to himself. He shows by his own evidence, hoAvever, that he knew all about this at the time he made the settlement, and made no objection in the world thereto at that time. The amount of these withdrawals is not shown, but in view of the fact that Benedetto had full knowledge thereof at the time he made the settlement, and did not complain of the same at that time, convinces us that they were so immaterial as not to have been considered worthy of note by the interested parties. At any rate we would not be justified in setting aside an account deliberately made up by the partios with full knowledge of all the facts because of the omission of such items, when their amount is not shown, and their effect upon the settlement does not appear.
The general mercantile business in which the parties were engaged above referred to was conducted entirely separate and apart from the saloon business which we have been discussing. It seems that after Benedetto and the two. Di Baccos became partners in this mercantile business Salvatore Di Bacco became the managing partner thereof. The contention of the two Di Baccos is that they bought out the interest of Benedetto in 1905, each of them paying to him therefor the sum of $1803.00, or rather giving him their notes for this amount, which were subsequently paid. Ben-edetto, however, denies this contention. He admits they gave him these notes, but he contends that they were given to him not in purchase of his interest in the business, but simply to cover two-thirds of the amount advanced out of
Criticism is made of the action of the court in fixing the amount to which Benedetto is entitled. The court below determined that because of the false representations made by the Di Baccos, they should pay him one-third of what the business had earned up to the time he retired therefrom. Benedetto does not ask that that arrangement be set aside, and he does not ask that the partnership be restored. He only asks and he desires to have his share of the money earned. This partnership was one at will. It might be dissolved by the partners at any time. ■ One of the parties may sell his interest to the others and if the transaction is free from fraud the purchase price agreed upon for such interest -will be the measure of his interest in the partnership, and receipt of this item will exclude him from further participation therein. If, however, one of the parties is induced to part with his interest in the business upon representations that are false, he is entitled to be made whole. A partner so mailing such representations will not be allowed to profit by them. In this case the court- below undertook to give effect to the agreement of the parties. That was that'Bene-detto would retire from the business by receiving one-third of the profits thereof, the Di Baccos, of course, to take over the stock of goods and to pay the debts. This would seem to be entirely equitable in this case. If the Di Baccos had told the truth, and there had been no profits in this business, then Benedetto could not maintain this suit. Having found that there was fraud in procuring Benedetto to make this sale, will the court treat that agreement as not made at all, and put the partners back together again, and treat the business thereafter conducted as a partnership and Benedetto entitled to participate therein? In considering this question it must be borne in mind that Benedetto made no claim of any fraud in this matter for about three years. He allowed
The appellants complain of the action of the court in decreeing a sale of their real estate in satisfaction of the decree without giving them a day to redeem. It has been held in this jurisdiction that in a suit to enforce judgment liens, trust deed liens, or liens by way of mortgage, it is error to decree a sale of the property without giving the debtor a day within, which to redeem. King v. Burdett, 44 W. Va. 561; Rose v. Brown, 11 W. Va. 122; Rohrer v. Travers, 11 W. Va. 146; Pecks v. Chambers, 8 W. Va. 210. We confess we can see no very substantial reason for this holding. It is, perhaps, because the pendency of suits affecting the debtor’s property, and the uncertainty of the amount of the liens for which the same may be sold, renders it difficult for the debtor to secure the funds necessary to relieve it from the liens, and the law in its tenderness to embarrassed debtors has seen fit to reasonably extend this time beyond that at which the amount is definitely determined. This is the only ground
Our decree here will reverse the decree of the circuit court in the first above entitled cause, and .dismiss the plaintiff’s bill. In the second above entitled cause we will correct the amount of the decree as above indicated, and will also correct it giving the defendants thirty days from the entry of the decree here within which to discharge the amount decreed against them, failing in which the sale provided under the decree shall be proceeded with.
Decree in second suit modified and affirmed; in first suit reversed and bill dismissed,