21 W. Va. 396 | W. Va. | 1883
announced, the opinion of the Court:
By written agreement, between John B. Bicards, John N. Buck and Thomas L. Blakemore, dated October 19,1849, the said parties agreed to form themselves into a partnership under the firm name of Bicards, Buck & Blakemore, for the purpose of purchasing certain lots and tracts of land in and near Watsontown — Capon Springs — in the county of Hampshire and State of Virginia, and of erecting thereon an extensive hotel and other improvements, the said Bicards to furnish one half and the other partners one fourth each of the capital which was to be thirty thousand dollars, and the profits, losses and expenses to be shared by each partner in the proportion of his interest in the firm, the partnership to continue five years from date and no partner to assign his interest in the firm orits assets without the written consentofthe others. Afterwards, by two deeds, the one dated November 1, 1849, and the other December 27, 1849, H. M. .Brent and others trustees of Watsontown conveyed to said John B. Bicards, John N. Buck and Thomas L. Blakemore certain lots of land in said Watsontown, and between said date and the 16th of April, 1852, two other tracts or parcels of land in said county were conveyed to said partners in their firm name. The said firm erected on said Watsontown lots an extensive hotel, known as the “Mountain House,” and' other improvements for the accommodation and entertainment by them and their lessees of travelers and visitors to the Capon Springs, and purchased and placed in said hotel a large amount of personal property, consisting of household and kitchen furniture, &c. The said firm and their lessees thereafter used said hotel, personal property and premises in the business of’ hotel-keeping until the same was sold under a decree in this suit. By deed, dated July 3, 1850, the said John N. Buck, with the written consent of the other partners, convoyed the
The said John R. Ricards and one Richard J. Frisby, partners composing the firm of Ricards, Frisby & Co., of Baltimore city, failed in business and by deed, dated May 3, 1852, and duly recorded in said Hampshire county May 4, 1852, the said partners of the firm of Ricards, Frisby & Co. conveyed, assigned and transferred to John H. B. Latrobe and George W. Bobbin oí the said Baltimore city, all their goods, wares, merchandise, stock in trade, and all estate, property, interests and debts of every kind, wheresoever situated, belonging to said Ricards and Frisby as eo-partners orto either individually or in which they, or either of them, have any interest, in trust to secure, the payment of all the just claims of all such creditors of the said John R. Ricards and Richard J. Frisby as should within sixty days from the date oí said deed execute and deliver to said Ricards and Frisby a iull release from all such claims, but the said trustees shall first apply the individual property ot each partner to the payment of his individual debts and likewise the partnership property to the partnership debts of said firm. The names of the creditors secured by this deed do not appear therein, or elsewhere in this record, nor is it shown that any creditor ever accepted the conditions of said deed, nor that the trustees have ever paid anything to any creditor.
The said Thomas L. Blakemore, having, also, become insolvent, he, by deed dated July 8, 1853, and promptly recorded in said Hampshire county, conveyed to Giles Cook, trustee, all his interest and estate in all the real and personal property of the said firm of Ricards, Buck & Blakemore, in trust to secure the payment of certain debts and to indemnity certain endorsers therein mentioned, including among the latter William M. Buck and Janies R. Richards. -And, by deed, dated January 1, 1861, the said John N. Buck conveyed to said William M. Buck all his remaining interest in the said firm of Ricards, Buck & Blakemore, thus making said William M. Buck the owner of a one fourth interest in the property of said firm.
The plaintiff in this suit, Holmes Conrad, on the 8th day of June, 1875, held the bond of W. B. Buck, Wm. M. Buck, John N. Buck and James R. Richards for three thousand dollars, and, also, the note of the same persons, other than
By decree of September 12, 1879, said report as to the debt oí John Ward was confirmed without objection, and the other matters therein having been excepted to by the plaintiff, the report as to them was re-committed to said commis
1st. — That the firm of Bicards, Buck & Blakemore is indebted to Wm. M. Buck and John N. Buck, March 1, 1880, three hundred and ninety-six dollars and thirty-nine cents.
2d. — That said firm is indebted to Latrobe and Dobbin, trustees, at same date, twenty-one thousand eight hundred and sixty-one dollars and twenty-six cents.
3d. — That these two sums and the Ward debt before allowed greatly exceed the proceeds of the sale of the property of said firm, the said proceeds being about eleven thousand dollars.
To this and said commissioner’s report of March 24, 1879, the plaintiff, Conrad, excepted on the following grounds :
“1. That the commissioner has undertaken to adjudicate and to determine the character and amount of the claim of Messrs. Dobbin and Latrobe, trustees, although it appears that this claim is now the subject of a suit in chancery instituted for the sole purpose of ascertaining the state of the partnership accounts long before the institution of this suit, and yet pending in the Hustings court of Winchester, to which proceedings Messrs. Dobbin and Latrobe are parties, and are now before that court asserting said claim, and the same yet remains unascertained and altogether undetermined.
“2. The claim allowed to Dobbin and Latrobe, trustees, is not the claim asserted by them in this proceeding, but altogether another and different claim, and held (if at all) in a different light, and wholly unsustained by any competent proof in the cause, and long since barred by time.
“3. Because by the records of Hampshire county the property in question appears as real estate vested by deed in J. R. Bicards, Jno. M, Buck and Tho. L. Blakemore as joint tenants, and not otherwise, and no subsequent use of this property in tho prosecution of a business as co-partners could impress upon it the character of partnership assets as against subsequent creditors or purchasers; and
“ 4. That Dobbin and Latrobe can have no claim of any kind against the fund due under the pleadings and proofs in the case.”
First. — To the payment of the costs of this suit;
Second. — To the payinent of the debt of John Ward, two thousand four hundred and eighty dollars and ninety-three cents with interest on one thousand one hundred and seven dollars and fifty-six cents, part thereof, from April 17, 1879; and
Third. — The residue to be paid ratably to John II. B. Latrobe and George W. Bobbin, trustees oí John R. Ricards, and the plaintiff Holmes Conrad attaching creditor of ¥m. M. Buck in the proportion of the amounts ascertained to be due them respectively as follows: To Latrobe and Bobbin, trustees as aforesaid, twenty-one thousand eight hundred and sixty-One dollars and twenty-nine cents -with interest on nine thousand six hundred and ninety dollars and fifty-four cents, pái’t thereof, from March 1, 1880, and Wm. M. Buck three hundred and ninety-six dollars and thirty-nine cents, with interest on three hundred and five dollars and seventy-four cents, part thereof, from March 1, 1880, till paid.
From this decree the plaintiff, Conrad, has appealed to this Court.
Preliminary to the main question, the appellant claims that the circuit court erred (1) in setting aside the decree of the county court of June 6, 1877, confirming the commissioner’s report, and (2) in not delaying the proceedings in this cause until the rights of the parties could be determined in a suit brought in the circuit court of Warren county and now pending in the corporation court of the city of Winchester in the State of Virginia — the said suit having been brought before this suit for the purpose of settling the partnership of Ricards, Buck & Blakemore. These two claims it seems to me answer each other; because, if it was error for the court to decree in favor of Latrobe and Bobbin, trustees, before the final determination of the Winchester suit, then it was equally erroneous for the appellant to institute this suit and obtain a decree in his favor while the Warren county suit was pending and undetermined. But assuming that they do not destroy
The objection on account of the pendency of the suit in the Winchester court is equally destitute of merit. When the suit is proper for a court of equity, but not for the particular court in which it is brought, the objection must be taken by plea in the court below. And in no case will the pendency of a suit in a foreign court, or the court of another State, bar the right of the plaintiff or any other pai’ty thereto, to prosecute another -suit in this State for the same cause of action — 1 Dan. Chy. Pr. 633; Allen v. Watt, 69 Ill. 655; Cole v. Flitcraft, 47 Md. 312; Lockwood v. Nye, 2 Swan. 515. Nor will a stay be allowed for such cause. Phosphate Sewage Co. v. Mollison, 1 App. Cas. 780.
“Bi Cards, Buck & Blakemore,
“To J. U. J3. Latrobe and George W. Dobbin, trustees of John B. Bicards, Dr.
For this ain’t paid to William H. Hoffman, a creditor of the firm of Bicards, Buck & Blakemore, in payment of his debt, and substituting the said Latrobe and Dobbin in his stead as a creditor for the sum so paid of the said firm of Bicards, Buck & Blakemore...$ 6,197 31
Int. on $4,657.44, part of sum, from Jan. 1, 1852, to Jan. 1, 1869 . 4,750 58
Int. on $1,539.89, part of said $6,197.31, from March 1st, Í852, to 1 Jan’y, 1869 . 1,555 25
For this sum paid for insurance premiums on the property of said firm from the time the assignment to said L. and D. was made for account of said partnership till the said partnership could be wound up. 3,493 23
Int. on the same from respective dates of payment. 1,698 61
$17,694 38
From which deduct.four years’ interest on principal, $9,690.54, during war. 2,325 72
$15,368 66”
This account, it will be observed, consists of but two items, (1) the “Hoffman debt,” as it is called, and (2) the claim for money paid for insurance. The facts in regard to these claims as shown by the record, are as follows: After the completion of the hotel and improvements at Capon Springs the partners of the firm of Bicards, Buck & Blakemore had a settlement of their partnership affairs, and it was then ascertained that John B.. Bicards, one of the partners, had overpaid his part of the outlay six thousand one hundred and ninety-seven dollars and thirty-one cents, as of January 1, 1852, for which sum the said firm gave him their note, which note the said Bicards, afterwards, transferred to Win. H. Hoffman, ot Baltimore city, in part payment of a debt due from him to said Hoffman. The said partnership, having
By the terms of the partnership agreement, hereinbefore referred to, it was declared, that no partner shall transfer his interest in the firm or its property without the written consent of th e other partners. As before shown, John B. Bicards, one of the partners without the consent of the others, by deed dated May 3, 1852, made an assignment of his interest in the firm and its assets to Látrobe and Bobbin trustees. This assignment operated ipso facto a dissolution of the firm as of that date. This assignment would have effected a dissolution independent of the expressed stipulation in the articles of co-partnership. Pars. on Part. 400 ; 1 Collyer’s Part. § 102.
After the dissolution of a partnership the partners become tenants in common of the social property, and the right of one partner to dispose of the interest of his co-partners in the property ceases, except so far as is necessary to dispose of the social effects and pay the debts of the firm, and his authority to bind the partnership in reference to any new contract is absolutely revoked, and he can only act in settling and. paying the debts of the concern. 1 Collyer’s Part. § 107 and notes. And it seems that even where a partner is, upon the dissolution, authorized to settle up the business of the firm, he cannot bind the firm by giving a note for a firm debt, nor by %oay of renewal. Valkenburgh v. Bradley, 14 Iowa 112; Parker v. Cousins, 2 Gratt. 372. The agreement of the partners that one of their number shall wind up the business, does not enlarge his powers so as to enable him to impose any new liabilty upon the the firm. Myatt v. Bell, 41 Ala. 232. After the dissolution, no partner can create a cause of action against the other partners, except by an authority conferred on him for that purpose. Bell v. Morrison, 1 Pet. 360; Yale v. Yale, 13 Conn. 185; Montague v. Reakert, 6 Barb. 393; Parker v. McComber, 18 Pick. 505.
In Bell v. Morrison, 1 Pet. 351, it was sought to take the claim out of the statute of limitations against the firm upon the acknowledgment of one partner. The court held that it
It was after the dissolution of the partnership of Ricarda, Buck & Blakemore that the arrangement was made between ¥m. M. Buck and George W. Dobbin for the payment of the Hoffman debt. The most that can be claimed for the authority of Buck to make any agreement is that he was the settling partner of the firm. He was the trustee of the other partners in charge of the firm property for the purpose of winding up the concern in such manner and with such, authority, and none other, as tire law conferred upon him; because no special authority is shown or claimed. .He could not, therefore, in his situation create any new obligation or impose any new liability upon the firm. Nor could he make any arrangement or contract for the firm which would prevent the other partners from relying upon the statute of limitations or any other defense.
With his authority, thus limited, had said Buck any power to bind the firm by the alleged agreement, between him and Dobbin, that the said Dobbin andLatrobe, upon the payment of said Hoffman debt, should be substituted to the rights of said Hoffman ? Dobbin testifies that this was the agreement at the tune he undertook the payment, but Buck, who gives all the details of the arrangement between Dobbin and himself in regard to this debt, and does so, as his testimony shows, certainly without any hostility to the claims ofLatrobe and Dobbin, makes no mention of any such agreement. And the improbability, that there was any such agreement, is much increased by the facts in relation to the payment made by Latrobe and .Dobbin. When they paid Hoffman they took no assignment of the note from Hoffman, nor was there any agreement or understanding between them and Hoffman, that the note or the original debt was to survive its payment. Instead of producing the note, either with or without any assignment, they file in this cause as the basis of their claim an account for money paid by them for the use of the said firm of Ricards, Buck & Blakemore. If such an agreement had been actually made, the best evidence of it, and that
These facts go very far to indicate, that this agreement for substitution was an after-thought brought about, perhaps, without intentional wrong or perversion by the anxiety of the witness and the exigency of the occasion. For at the time this alleged agreement was made it was confidently expected that the property would sell for eighty thousand dollars, or near that sum, and produce an ample sum to pay off all the debts and reimburse any outlays or advances which any party might have made. It was not then deemed necessary to be over-cautious about preserving any supposed lien or priority for money advanced. The reasonable conclusion therefore, seems to be, that Bobbin was mistaken when he stated that an agreement for substitution to the rights of Hoffman was made between him and ¥m. M. Buck at the time the arrangement was made for the payment of the Hoffman debt.
But conceding that such an agreement had been attempted, under the authorities above cited" it would have been inoperative against the firm or any of its members, except said Buck, and could not be set up in this suit so as to affect the partnership-property. For to allow it to affect the partnership-property would be in effect to bind the other partners by taking from them a part of the assets which they would otherwise receive. It does not appear out of what funds the said Latrobe and Bobbin, trustees, paid said debt, and as it was not one of the debts secured by the trust-deed to them, from Ricards & Frisby, they had no right to pay it out of the trust-funds, and we must, therefore, conclude that they did not, in that respect, violate tlicir trust, but that they paid it out of their own private funds. They were under no legal obligation to pay it, and having paid it, they necessarily did so voluntarily and as strangers to the transaction. And having thus paid it at the request of one of the partners, in a court of equity they, as the equitable owners thereof, may enforce its payment. Neely v. Jones, 16 W. Va. 625; James v. Stephens, 2 Pet. & H. 11; Douglass v. Fagg, 8 Leigh 588. But by such payment they cannot certainly be in any better
Latrobe and Bobbin being, then, simple contract-creditors of the firm of Bicards, Buck & Blakemore upon an implied promise, that the firm will pay them the amount paid by them to Hoffman for the use of the firm, the statute of limitations would bar the said claim at the expiration of five years from the date of such payment. But in order that the statute of limitations may be made available, it must be pleaded formally at law, or relied on in some form in the court below in equity. This may be done in equity by demurrer, plea, answer or by exceptions to the report of a commissioner in proper cases. It remains, then, to enquire whether the statute was in this case so relied on in the court below as to make it available to the appellant here.
The partnership of Bicards, Buck & Blakemore is utterly insolvent, the assets being entirely insufficient to pay all of its debts including that of Latrobe and Bobbin. None of the partners have answered the bill and John B. Bieards is not even a party to the cause. This is a contest among the creditors of the firm and a creditor of part of the individual members of the firm. In Feamster v. Withrow, 9 W. Va. 296, which was a contest over the estate of an insolvent debtor, the cause had been referred to a commissioner and the debtor failed to file exceptions, but some of the creditors excepted to the debts of others on the ground that the debts so excepted to were payable in Confederate money and should be scaled. It was objected that the right to rely on such defense was personal to the debtor and could not be made by a creditor of the debtor, The Court, in its opinion,
In Woodyard v. Polsley, 14 W. Va. 211, this Court held that: “The statute of limitations may be relied on before the commissioner, even where it has not been pleaded before the court prior to Hie order of reference.” And also : “Where a reference is made to a commissioner to settle the accounts of an intestate, the creditors may appear before the commissioner and contest the claims of each other.” And they may so “contest such claims on the ground that they are barred by the statute of limitations.” Wordenbaugh v. Reid, 20 W. Va. 588; Crawford v. Carper, 4 Id. 56, 71.
Under the terms of the statute of limitations, which declares that, “no suit or action shall be’brought” after the prescribed limit, the courts at first held, even in actions at law, that it was to be taken as an absolute bar, and operated by' its own force, and without being pleaded. But it was afterwards determined that, although the action might appear from the declaration to have been brought after the prescribed limit, still as the plaintiff might be within some of the various exceptions mentioned in the statute, this doctrine was incorrect; and the rule was established that, in all actions at law, where the defendant wished to rely on the bar of the statute he must plead it. In a court of equity, however, it is different. In that court it is well settled, that if it appear on the face of the bill that the.suit is barred by the statute, a demurrer will lie to it. Because if the plaintiff’s case is within any of the exceptions of the statute the fact must be stated in the bill — Ang. on Lim. § 294; Story’s Eq. Pl. §§ 378, 389, 390; Kane v. Bloodgood, 7 Johns. Ch. 90.
Without intending to decide whether or not in all cases one creditor may avail himself of the bar of the statute of limitations against the claim of another creditor, I am of opinion, upon both reason and authority, that in suits brought for the liquidation and settlement of insolvent partnerships when the fund is insufficient to pay all the debts and the
The Hoffman debt was paid off by Latrobe and Bobbin probably in 1852 or 1853, certainly not later than 1854; because, "Wm. M. Buck says, in his deposition, that the arrangement to pay off this debt was made by him with Bobbin about the close of the spring’s season of 1852 or 1853, and that it was made because this debt as well as other debts were being pressed for payment. It is not presumable, therefore, that the payment was delayed beyond the year 1853 or 1854. And, moreover, the account filed by said Latrobe and Bobbin, heretofore copied in this opinion, shows that the interest is charged on four thousand six hundred and fifty-seven dollars and forty-four cents, part of said debt, from January 1, 1852, and on one thousand five hundred and thirty-nine dollars and eighty-nine cents, the residue thereof, from March 1,1852; and Bobbin, in his deposition, says: “As stated in said account, the said payment was made in two items. The dates from which the same respectively bear interest are stated in said account.” The decided inference from this statement is that said debt was paid off by Latrobe and Bobbin in 1852. But even conceding it was not paid until 1854, it was barred before the institution of the suit in the circuit
In regard to the claim of Latrobe and Dobbin of three thousand four hundred and ninety-three dollars and twenty-three cents for premiums paid by them for the insurance of the hotel and furniture belonging to the partnership of Ricards, Buck & Blakemore I am clearly of opinion, that it, with the accrued interest thereon from the time it was paid, is a subsisting claim. This is a claim incurred for the preservation of the property and would have been allowed to Wm. M. Buck as the managing partner of the firm, if he had paid it, in the settlement of his accounts with the firm and could not have been affected by the statute of limitations fintil after such settlement was had. It would have been credited to him as a part of the legitimate expenses incurred in the management of the property for the interest of the firm and all parties interested therein. And he, having the authority to incur this outlay, it follows necessarily that he had the authority to bind the property of the firm by any proper agreement made by him with Latrobe and Dobbin for the payment of said premiums. Brown v. Higginbotham, 5 Leigh 583. But as this is a part of the expense-account incurred in the management of the trust-property, it should be paid like other expenses of the settling or managing partner properly incurred, out of the fund as a preferred claim.
I am, therefore, of opinion that the circuit court, by its decree of September 10, 1880, erred in so far as it overruled the exceptions of the plaintiff, Conrad, to the report of the
First. — To the payment of the costs and expenses of this suit including all proper commission for the care of the fund, loaning and collecting the same;
Second. — The claim of Latrobc and Dobbin for three thousand four hundred and ninety-three dollars and twenty-three cents with interest thereon from the date or dates at which the same was expended by them for the insurance of the firm property;
Third. — The claim of John "Ward for two thousand four hundred and eighty dollars and ninety-three cents with the proper interest thereon till paid;
Fourth. — The three hundred and ninety-six dollars and thirty-six cents with the proper interest thereon ascertained to be due from the firm to Wm. M. Buck one of the partners thereof; and
Fifth. — The residue to be distributed ratably among the partners of the said firm according and in proportion to their respective interests in the said partnership and paid to them respectively or to the assignees of such as have assigned or transferred their interests therein, or any part thereof.
But no part of the said three hundred and ninety-six dollars and .thirty-six cents, nor any part of the distributive shares of said Wm. M. Buck, John N. Buck, M. B. Buck and James B. Richards or any of them whose interests have been attached by the plaintiff, Conrad, in this cause, should be paid to them, until a sum sufficient to satisfy the two debts of the said plaintiff in his bill mentioned, should have been deducted therefrom, and said sums to the extent of the plaintiff’s said debts, if sufficient, should have been ordered
It is, therefore, considered, that for the errors aforesaid the said decree must be reversed with costs to the appellant against the appellees, J. H. B. Latrobe and George W. Bobbin, trustees; and this cause is remanded to the circuit court of Hampshire county to be there proceeded in according to the principles and directions set forth in this opinion and further according to the rules and practice in courts of equity.
Decree Reversed. Cause Remanded.