Burke v. Parke

5 W. Va. 122 | W. Va. | 1872

Maxwell, J.

The appellant, Burke, and the appellee, Thomas F. Parke, were merchants and partners doing business under the firm name of Parke & Co., and on the 12th day -of January, 1809, dissolved their partnership by mutual consent. After dissolution, a difference arose between them as to the payment of the partnership liabilities, and division of the partnership effects remaining after the payment of debts, to adjust and settle which, they submitted all matters of difference between them, in respect to their said partnership, to the arbitrament and award of certain arbitrators, by agreement under seal bearing date on the 11th day of June, 1869. The arbitrators made their award on the 19th day of the same month, awarding that Parke should take certain of the partnership effects and pay the partnership liabilities, and that the residue of the effects should be divided between the parties, as specified in the award. The award further provided that the said Parke should execute an obligation with sufficient security, to the said Burke, for the payment of the balance ■of said Parke & Co.’s liabilities, conditioned that Parke would save harmless the said Burke from the said unpaid liabilities, amounting to one thousand eight hundred and thirty-nine dollars and ninety-throe cents.

On the 17th day, of November, 1869, Burke filed this bill in the circuit court, stating the facts substantially as here stated, and alleging that the partnership effects were divided according to the terms of the award. And further charging' that the said Parke had wholly neglected and refused to execute the said bond of indemnity ; that the said Parke had neglected to apply the assets received by him for that purpose, to the discharge of the unpaid liabilities of the said firm; that he had fraudulently disposed of a portion of the said assets to certain parties, and was attempting to dispose-of certain other portions of them in payment of his own private debts.

The bill contains a prayer that the matter be referred to a. commissioner of the court to make, state and report a settlement of the partnership transactions of the said firm of Parke & Co., stating specially the assets and liabilities of said firm, the assets, obtained and collected by each of the partners thereof, and the assets undivided.

There is also a prayer for an injunction to enjoin Shanklin, Clark & Co. from the payment of a note executed to the said' Parke, for a portion of the partnership effects placed in the hands of the said Parke for the payment of the firm debts, and a prayer for general relief.

The injunction was allowed as prayed for, and when'the case came on to be heard there was a demurrer to the bill, which was sustained, and the injunction dissolved and the bill dismissed.

It is claimed here that the court erred in sustaining the demurrer to the bill, because a court of equity has jurisdiction, first, to enforce the award; second, to set aside the award, and third, for the settlement of the partnership business of the firm of Parke & Co. In respect to the first point, the bill shows that the award has been fully executed, except as to the execution of the bond provided for in the award. A court of equity will enforce specific performance of an award, when the thing ordered by the award to be done is such as a court of equity would specifically enforce, if it had' been agreed upon by the parties themselves. Russell on Power and Duty of Arbitrator, p. 525. A court of equity will not entertain jurisdiction for specific performance of agreements respecting goods, chattels, stock, choses in action, and other things of a merely personal nature, where compensation in damages furnishes a complete and satisfactory remedy. 2 Story’s Eq. Jur., § 718. It does not appear in this case but that Burke can recover from Parke any damages he may sustain by the failure of Parke to pay the firm debts, especially .as there is no allegation in the bill that he is insolvent or likely to become so. As to the second ground, there is no reason whatever shown for setting aside the award.

And as to jurisdiction on the ground of the settlement of the partnership business of the late firm of Parke & Co., the bill shows that it is already done according to the terms of the award.

There is no error, therefore, in sustaining the demurrer to the bill, and the decree complained of will have to be affirmed, ■with damages and costs to the appellees.

The other judges concurred.

Decree aeeirMEd.