Comstock v. McDonald

| Mich. | Jul 13, 1897

Hooker, J.

(after stating the facts). The evidence upon which this order was made was that of the complainants, taken by the defendants under the statute, certain documentary evidence from the probate court, and the testimony of Bewick and his son, taken by deposition on behalf of the complainants. The testimony is not voluminous, and the facts do not seem to be disputed, except upon the question of the intestate’s purchase. In this particular, upon the present record, we think the claim of the widow and administrator is not sustained. It is based on what they seem to claim was a gift by the complainants to Joseph of one-third interest in their two-thirds of the business and property on condition that Joseph would purchase one-ninth, and have it charged to him on the books, which charge, by the way, was not made. This claim is sought to be sustained by invoking the aid of the statute prohibiting the parties to testify, and by treating the testimony of the Bewicks as hearsay. This cause is not here upon final hearing, as we judge that it might easily have been, for it was, or might have been, at issue in December, 1895, and it is stated without denial that it had passed the September term, 1896, against the opposition of the complainants, and this petition was filed a month later.

To the contention that this was a consent order, the record is a complete answer. First, the parties were in court contesting it; and, second, the bill did not ask a preliminary order, but only after a full hearing and accounting, which apparently the complainants were willing to have taken. It is evident that this bill was filed- — ■ First, to settle this claim made on behalf of Joseph’s estate; and, second, to enable the purchase by the complainants upon some fair basis of a business which they-had built up by years of hard work, and which they might naturally desire to continue. We may well take notice of the difficulties of closing out a business of this kind, in the strict sense of selling and scattering its various assets, whose chief value consists in the fact of their aggregation, under competent management; difficulties which are intensified by the financial conditions which have prevailed for a few years past. We do not overlook the natural proclivity to purchase at a low price, and realize that surviving partners may have opportunities to perpetrate wrongs upon the representatives of deceased partners, but we think there should be more tangible evidence of it than there is in this case before taking away their control, and placing it in the hands of others. The complainants appear to be abundantly responsible, and no doubt can be made to do justice upon a final accounting. If wise counsel prevail, it would seem that the parties might adjust their rights upon a fair basis without the vexation and loss of protracted litigation. If they cannot, a fair ■accounting can doubtless be had through the courts.

The order appointing a receiver is reversed and set aside, with costs of both courts.

Grant, Montgomery, and Mocare, JJ., concurred. Long. C. J., did not sit.