*1 judgment of possession his immediate at. all times the Court of Criminal reversed, when operating a motor vehicle and shall is and the case dismissed. same, display the upon demand [of appropriate . li- Every . . . officer] BROCK, J., FONES, C. HENRY and censee operating a motor vehicle in viola- JJ., HARBISON, concur.
tion of guilty this section shall be of a misdemeanor .
T.C.A. 59-2116: § It shall be unlawful any person operate
for any motor vehi-
cle . . while judgment or or-
der of the court prohibiting operation Any person
remains in effect. found to
be an provi- habitual offender under the
sions of chapter who thereafter convicted of operating a motor vehicle CUDE, Betty Administratrix of Rose this state while judgment or order of Cude, Robert Estate of Jessie the court prohibiting such is in Petitioner, Deceased, effect, shall be guilty felony . “judgment or order” to which T.C.A. Respondent. COUCH, 59-2116 § refers is that issued under the Supreme Tennessee. provisions of T.C.A. Habit- 59-2113 of the § Act, ual Motor Vehicle Offenders which' 22, Oct. states that if the court finds that an indi- vehicle) vidual (motor is an “habitual of-
fender,” it shall person order “that such
shall motor vehicle on
highways person of this state that such
shall surrender to the all licenses to court
operate a upon highways motor vehicle
of this provides state.” T.C.A. 59-2115 §
that no license shall be reissued to one
subject Thus, to such an order. under this scheme,
statutory subject person to a
restrictive order under the Habitual Motor
Vehicle Offenders Act can have no valid and, license,
Tennessee driver’s should he order,
drive in he violation of that necessar-
ily possession. drives a license in his without
Accordingly, impossible it is for one to vio-
late violating T.C.A. 59-2116 without § well,
T.C.A. 59-709 as and thus the latter §
offense is included within the former. Cf. Ohio,
Brown v. 97 S.Ct. U.S.
petitioner’s plea guilty charge to the
violating T.C.A. 59-709 bars his subse- §
quent prosecution the violation 59-2116,
T.C.A. upon based same inci- §
dent.
555 appointed, operated laundry was the order, and for several months. On court advertisement, the assets of after equipment of the nership, which consisted At sale. laundry, public of the were sold at sale, that Couch indicated the time of anyone building to he would not lease the operate the might who want to continue to there, purchaser thus the laundry it would have to remove equipment premises. equipment from by one Louis Platkin ultimately purchased Although it was not revealed for $800.00. sale, Platkin was an at the time of the son have his agent Couch and of Couch. at the operate the laundromat continued to same location. inor
Cude moved to set aside contending in damages, the alternative for essence that Couch had value artifi- clandestinely, at a equipment permit cially his refusal depressed by in that premises, to lease the others advantage an unfair doing gained so he had partnership, in a transaction with the Af- duty to Cude. breaching fiduciary denied judge hearing, ter a the trial Lloyd Adams, Jr., Adams, S. Ryal & Cude However, permitted motion. he McLeary, Humboldt, for petitioner. so, did Cude file counterclaim. an amended substantially the same and in it restated Hawks, Dwight Humboldt, respon- raised in had been claim for relief that dent. by a heard motion. This counterclaim record judge, upon both the second trial OPINION testimony. additional prior hearing COOPER, Justice. Cude’s judge also denied This second trial was affirmed judgment His claim.1 presents This case single question Appeals. whether, purchasing certain assets of a partnership upon liquidation, its judges the several agree with We duty Couch breached the that he owed to previously this case who have considered partner, conclude, J. R. Cude. We as We do merit. claim is without Cude’s below, did both courts that he did not. each other partners owe question partnership question fiduciary pertaining was formed matters duty in all contin purpose duty Couch and Cude in partnership, 1965for the and that operating being liquidat partner- partnership a laundromat. The ues while the ship space business, simply rented We do not for the on a 61-120. ed. See T.C.A. § here, basis, Couch, that, month-to-month in a the facts shown believe building that housed There is no dealership. duty Couch’scar to Cude. breached In seeking Couch filed an action had an inherent ad doubt but that Couch dealings ques- have the partnership throughout dissolved. A receiver vantage prosecuted by pend- the administratrix of his While this amended counterclaim was been ing, then, estate, petitioner J. R. died. Since Cude the action has who is the before this court. 556 However, the fact
tion,
others.
that Couch bene-
ownership
as a result of his
of the
operated.
nei-
property on which the laundromat
from that circumstance harmed
fited
However, the
breach-
record does not show
ther Cude nor
advantage
Davis,
used this
to force Cude out of
duty to neither. Cf. Davis v.
ed his
partnership.
showing,
Absent such
366 P.2d
Colo.
permit
neither Couch’s refusal to
others to
*3
The decision of the
premises,
lease the
nor the manner and
peti-
be taxed to the
affirmed. Costs will
price
purchase
equipment—
of his
of the
tioner.
together
peti-
of the
form the basis
complaint
improp-
tioner’s
be termed
—can
HARBISON, JJ.,
and
concur.
BROCK
beginning
partnership,
er. From the
of the
FONES, J.,
J.,
Couch made it clear that he would not
HENRY,
and
dissent.
C.
permit
part
in
to
property,
a lease of the
Justice, dissenting.
HENRY,
insure
operation
that the
of the laundromat
respectfully
I
dissent.
would not
interfere with that of his car
dealership, operating
building.
in the same
in
conscience,
cannot,
acquiesce
good
I
in
proof
that,
The
also shows
at
time of
the
my colleagues.
by
conclusions
reached
dissolution,
Couch’s determination in
say that
prepared to
While I am not
regard
strengthened by
his belief
partner,
upon
practiced a fraud
Couch
might
put
space
need to
to use
that
escape from the conclusion
there is no
notice,
purposes
for other
either to
on short
fiduciary
appalling breach
there was an
expand
dealership,
provide
office
or to
This
upon sharp practices.
duty bordering
space for his
practice.
son’s medical
Under
cannot withstand
simply
transaction
circumstances,
these
conceive
we cannot
Courts, as
equity.
scrutiny of a court of
partner
that Couch’s
to his
duty
admitted
observes, “require good
Chancellor Gibson
require
premises
would
that
he lease
repro-
men, and
dealings
faith in
between
interests,
against
despite
his own
best
Chancery
Suits
bate
faith.” Gibson’s
bad
fact that
not
laundry
could
be sold as a
physician
a
(4th
1937). Just as
48
ed.
§
going business without
lease. As to the
a
signs,
external
disease
diagnoses internal
manner
purchased
which Couch
expose
diagnose
equity
of
so do courts
equipment,
agree
while we
peti-
with the
harmonize
not
that do
practices
and treat
tioner that
it would have been better had
good
with
faith.
Platkin
agency,
disclosed his
there is no
refinements, shapes,
subtleties,
are
There
suggestion in the record that his failure to
rec-
in this
presented
disguises
forms and
so,
itself, prejudiced
do
of
either the
essentials, and
bare
stripped to
When
ord.
nership
any-
or Cude. Neither can we find
fair-
fundamental
light of
in the
analyzed
thing objectionable
price
in the
that Couch
an unwhole-
unerringly to
ness, they point
greater
for the equipment.
It was
transaction
some,
unfair
unsavory and
Cude,
than the amount that
who also bid on
lookWe
view,
not stand.
which,
may
my
equipment
partnership,
owned
record.
to the
prudent
deemed
There were no
to offer.
by Nathan
laundry
The
bidders,
suggest
other
which would seem
twenty-six
employee
Couch and
open
property
the value of the
lease, on
Cude,
a
without
years, Robert
at
price
market
offered
was minimal. The
$7,000.00.
9,1975, for the sum
September
of an
a public sale is the best indication
“Wash-
name
changed the
They
Davis, 149 Colo.
item’s worth.
Davis
See
Laundry-
to the “C&C
Laundrymat”
Osborn,
time
Bagg v.
169
(1961);
length, are forbidden to those bound Knoxville, Rader, Charles E. plaintiff- fiduciary ties. appellee. I would reverse and remand to the trial court with instructions to determine the OPINION going value of as a busi- GODDARD, Judge. ness, assuming period a lease for the business has operated by been Couch since Wood and Safeco Insurance Malcolm entry and for the of a decree America, bonding company, Company making appropriate award. appeal Defendants-Appellants, $1288 against in favor of judgment rendered them
FONES, J., joins in this dissent. Inc., Plaintiff-Appellee. Witherspoon, David Inc., Company, a co- Ivester Auction John defendant, judg- against whom a default entered, appealed. While has not ment was error, assignments of are seven there specific findings which address last six of WITHERSPOON, DAVID INC., Court, a resolution of holdings of the Plaintiff-Appellee, out, set hereinafter assignment, first *5 appeal: dispositive of this finding and Malcolm erred WOOD and The Chancellor Safeco Insurance Wood, thus Safe- Company America, holding that Malcolm America, was Company of Defendants-Appellants. Insurance co proceeds appellee for liable to the Tennessee, paid which were sale the auction Eastern Section. agent. appellee’s June 1979. case are practi- of this The material facts Auction undisputed. John Ivester
cally Louisiana, Inc., Company, Shreveport, organizing pro- company engaged in auctions, an auction to be moting organized Alcoa, Tennessee, October held its purpose, of this In furtherance and obtained con- representative solicited Plaintiff goods from the signment of were con- the sale. Five items inclusion in at signed (four of which were Plaintiff) with a by the in accordance sale Ivester and agreement written between among other provided, Plaintiff things, following: payable
All checks shall be made Inc., Co., John as Owner’s Ivester Auction authority to reclaim agent, shall full have for as any and resell items not agreed sale. Owner in the terms of the will be al- understands that Auctioneers requested. approval appointed by * Certiorari Published with the of a committee of the Court Presiding Judge.