162 Ind. 424 | Ind. | 1903
This is an appeal from an interlocutory order appointing a receiver in an action between partners for an account and settlement of their partnership affairs, to take charge of the assets, collect debts, and wind up the business of the firm. The error assigned is the action of the court sustaining the motion for such appointment.
The points of objection made by the appellant to the proceedings and order of the court are thus stated: “(1) An action cannot be maintained for the sole purpose of having a receiver appointed. (2) In suits between partners a receiver will not he appointed unless it appears that the assets of the partnership are in danger of loss or depletion on account of the misconduct, fraud, or wrongful acts of defendant partner. (3) When upon a dissolution of a partnership the parties themselves have agreed upon the manner of collecting their accounts and settling up their affairs, a receiver should not be appointed where no violation of the agreement is shown.”
The complaint alleged the existence of a partnership between the appellant and the appellee, and its dissolution by mutual consent on September 8, 1902. It was also averred that the assets of the firm consisted of open accounts against divers persons amounting to a' considerable sum; that, some of these were barred by the statute of limitations; that others would soon be barred, but that all could he collected if diligence were used; that most of
The proof upon the motion for the appointment of a receiver very fully sustained the complaint. It showed the .existence of the partnership; its dissolution; that there were uncollected accounts due the firm.; that the appellant refused to press these collections, for the reason that it would hurt his business;. that appellant had overdrawn his account by about $308, -and that he told appellee that he needed that money, and was not going to put his hand in his pocket and give it to appellee; that many of the accounts due the firm had been standing six, or nearly six, years but were probably collectible by proper effort; that the uncollected accounts amounted to about $5,000; that the appel
It ie perfectly clear from the complaint that the pm’pose of this action was not the appointment of a receiver, but to obtain an accounting and settlement of the partnership affairs. The appointment of a receiver -was asked for in aid of this purpose. The complaint charged, and the evidence established the fact, that the appellant by his conduct was unnecessarily exposing the assets of the late firm to waste and loss, and that he was misappropriating such assets to the damage of the appellee. The fact that he collected and refused to divide the $308; his failure to charge himself on the books of the firm with the amount of the accounts which he had collected in money, property, or labor; the taking of the notes of the firm’s debtors payable to himself, to the exclusion of the appellee; the sale of those notes, and the appropriation of the proceeds to his own use, without the knowledge or consent of the appellee, who was equally interested in them — was such misconduct in reference to the assets and business of the partnership as authorized the court to appoint a receiver. §1236 Burns 1901; Bufkin v. Boyce, 104 Ind. 53; Saylor v. Mockbie, 9 Iowa 209; Webb. v. Allen, 15 Tex. Civ. App. 605, 40 S. W. 342; High, Receivers, §§472, 474; New v. Wright,
There was no proof that upon the dissolution the parties agreed upon a plan for the collection of the partnership accounts, or that the method adopted by the appellant was a fair or equitable one. Sweet v. Morrison, 103 N. Y. 235, 8 N. E. 396; Sutro v. Wagner, 23 N. J. Eq. 388; Smith v. Jeyes, 4 Beav. 503.
Under the circumstances of this case it was not necessary for the appellee to prove that the appellant was insolvent. Insolvency of itself may, in some cases, justify the appointment of a receiver; but such an appointment cannot be defeated when otherwise shown to be necessary or proper by proof or presumption that the defendant is solvent. Davis v. Grove, 2 Rob. (N. Y.) 134; Connelly v. Dickson, 76 Ind. 440; Turnbull v. Prentiss Lumber Co., 55 Mich. 387, 21 N. W. 375.
There is no error in the record. Judgment affirmed.