Evans v. Evans

9 Paige Ch. 178 | New York Court of Chancery | 1841

The Chancellor.

Laying the agreement between the parties in this case, made by their respective agents, entirely out of the question, I can see nothing in the situation of the parties, or of the property of the firm, to authorize this court to interfere, by the appointment of a receiver, to deprive the surviving copartner of the right to close up the concerns of the firm in the usual way. It appears to he a well settled principle of commercial law that upon the dissolution of the firm, by the death of one of the co-partners, the survivor is entitled to close up the affairs of the concern ; and that this court will not appoint a receiver and deprive him of that right if he is responsible and acts in good faith. (Cary on Part. 292. Gow, 3 Lond. ed. 356.) Here there is no pretence that the defendant is not perfectly responsible ; and the affidavits show that he is, engaged in closing up the affairs of the firm, by a competent agent, with all reasonable diligence. The fact of his residing in England, therefore, is no objection to his continuing to discharge the trust which has been cast upon him by operation of law under the copartnership agreement.

Again ; I am satisfied that the agreement made by Horsey, the agent, has been substantially complied with on the part of the defendant. Even if the account as stated by Fellows is perfectly correct, it does not follow that the complainant will be entitled to the whole $19,400 apparently due. The agreement itself shows that the object of the statement was not to make a final settlement; but to obtain a mere hypothetical computation of the apparent profits of the firm, for the purpose of seeing whether any part of the assets delivered up by the executrix should be placed or left in the hands of the attorneys for both parties, as a security for the amount which might eventually be found due after the debts were collected and the stock converted into cash. It appears by the statement annexed to the complainant’s bill, that the book debts and bills receivable were more than |35,000. And no one who has any knowledge of business as it has been transacted in the city of New-York since 1836, when the last settlement previous to the death of the junior partner appears to have been made, can suppose that the whole of that amount will be collected without loss.

It is not necessary in this stage of the suit to inquire whether the complainant has performed the agreement in good faith on her part, or whether she has retained a part of the cash which she agreed to pay over to Anthon and Owen for the use of the defendant. If the whole fund in her hands has been paid over, the defendant’s agent has left an equal sum in their hands, for the security of the balance which may eventually be found due to her ; which is all he was required to do under the agreement.

In case either party desires it, the cash funds which are lying unproductive in the bank may be invested in the trust company, to accumulate, until the account of the partnership can be taken and closed up. And the executrix, if she deems it for her interest, has a right to insist that the stock on hand shall at once be sold for cash ; so that the remaining debts of the firm may be paid off and the business brought to a close as soon as possible. The vice chancellor, upon a proper application, will of course make the proper orders for that purpose. But 1 see no reason whatever for charging the property with the expenses of a receivership, or of taking the business out of the hands of a competent agent for whose acts the defendant is responsible to the complainant.

The order appealed from must, therefore, be reversed, and the application for an injunction and receiver denied. The costs of the defendant upon the appeal, and upon the original application, to abide the event of the suit; and the proceedings to be remitted to the vice chancellor.