101 F. 972 | 5th Cir. | 1900
This suit is brought by James H. Campbell and George W. Clawson, citizens of Missouri, against Dorr Clark, a citizen of Wisconsin; D. C. Plumb, a citizen of Illinois; O. L. Ware, a citizen of Texas; and the Evans-Snider-Buel Company, an Illinois corporation engaged in business in the state of Texas, its principal office being at Ft. Worth, Tex. The bill and exhibits comprise 8G closely-printed pages. The bill contains many repetitions and much irrelevant matter. The only questions before us, however, are raised by demurrers addressed to the entire bill. We select from the bill and condense such of its statements as relate to the questions to be decided: In October, 1894, the plaintiffs, James H. Campbell and George W. Clawson, formed a partnership with Dorr Clark, D. C. Humb, and George E. Black. Black withdrew from the firm. Each of the remaining partners had by tbe agreement a one-fourth interest in the partnership. Tie purpose of the partnership was the “handling, raising, buying, and selling cattle, and the purchase and owning of the necessary ranches.” The firm name adopted was Clark & Plumb. The plaintiffs are described as silent partners. The profits were to be shared and the losses borne equally by tbe partners. Dorr Clark and D. O. Plumb were to hold possession of the property purchased and manage the business. The plaintiffs were to furnish the funds through the Campbell Commission Company, an Illinois corporation. The plaintiffs were the chief stockholders in this corporation. One of the plaintiffs was its president, and the other its vice president. The notes of the firm were executed, and the plaintiff's negotiated the notes through the Campbell Commission Company, and placed the proceeds with that company, to the credit of the firm. With the funds so raised, the firm purchased a ranch of McCoy, Rummery & Hay, together with the cattle and horses on it, at the price Of §105,000. Five thousand dollars was paid in cash, and §25,000
The relation existing between partners is fiduciary in character. Courts-of equity have jurisdiction'to- settle accounts as between part
It is alleged in the bill that Dorr Clark and D. C. Plumb, in executing the chattel mortgage on the 25th of June, 1895, intended to cheat, wrong, and defraud the plaintiffs, and that on the same day they executed a deed of trust on the real estate of the firm with the same intention; that the purpose of the instruments was to secure a dissolution of the firm, and enable Dorr Clark and D. C. Plumb subsequently to become the owners of the property. It is averred that the deed was executed for the purpose of securing the individual debts of Dorr Clark and I). C. Plumb. The debts specified in the bill amount to ${58,060, of which only $3,000 was a debt of tlie firm. It is alleged that the defendant Dorr Clark made an agreement with Henry (1. Weare by which the la it or was to become tbe purchaser of the property from D. T. Bomar as trustee and mortgagee, and that Dorr Clark was to havé a one-half interest In the property. Weare bought the property under this arrangement, and took possession of it. Weare made this arrangement with the knowledge that the property belonged to the partnership. It is alleged that the Evans-Snider-Buel Company lent to Dorr Clark and D. C. Plumb a large sum of money, and that to secure it the firm property was transferred to C. L. Ware as trustee, and that afterward O. L. Ware executed a deed of trust upon all of the lands, and a chattel mortgage upon all of the personal property, to the Evans-Snider-Buel Company, for the purpose oí se
The bill contains two separate and distinct equities that prevent it, as a-whole, from being amenable to demurrers. It is good as a bill for an accounting to settle a partnership, and it is good as a bill to charge certain of the defendants as trustees holding property described for the benefit of the partnership. It is not multifarious. It may be necessary to sell the property alleged to belong to the partnership, in order to fully settle the partnership transactions. To do this, those claiming an interest in the property should be before the court. We do not wish to comment further upon the case at this time, as it is before us only on the demurrers. We cannot tell how it will appear when answers are filed and evidence is taken. Conceding the truth of the averments of the bill, the plaintiffs are entitled to relief. The court below erred in sustaining the demurrers to the bill. The decree of the circuit court is reversed, and the case- is remanded to that court, with directions to overrule the demurrer, with costs, and to take such further proceedings in the suit as shall be proper, and not inconsistent with the opinion of this# court.