149 Ky. 170 | Ky. Ct. App. | 1912
Opinion of the Court by
Affirming.
Prior to 1890, John Glock was the owner of a chair factory in the city of Louisville, Kentucky. In that year he and his wife conveyed that lousiness to his son, Fred Glock and his son-in-law, Fred Weikel, for the stated consideration of $20,000, evidenced by notes. His said son and son-in-law at the time of the purchase, formed a partnership, which was continued under the name of “Glock & Weikel.” Thus the business was conducted for about four years. Toward the close of this period, some differences arose between the partners, which resulted in the purchase of Weikel of Glock’s interest,, and the retirement of Glock from the partnership. The agreement, by which this dissolution of partnership was effected, was evidenced by the following writing:
“This deed made by and between Fred Glock single, as party of the first part and Fred Weikel, as party of the second part, both of Louisville, Ky.
“Witnesseth: That the party of the first part for and in consideration of the sum of seven thousand two hundred dollars ($7,200.00) cash in hand paid and in further consideration that the second party assumes the payment of the lien notes mentioned in the deed made by John Glock and wife to Glock & Weikel, dated June 30, 1890, and recorded in Deed Book 351, page 408, and the second party also assumes the payment of the entire partner*172 ship indebtedness and claims of every nature and description against the firm of dock & Weikel, or in which the firm of dock & Weikel may be decreed to be liable, and for and in consideration of said cash payment and the assumption and payment by second party of said lien notes and said partnership indebtedness or liabilities, the first party Fred dock does hereby sell, grant and convey to the party of the second part, Fred Weikel, his undivided one half interest in the following described property, viz: ■
(Here follows description of real estate):
‘ ‘ The first party also conveys to the second party his entire undivided one-half interest in and to the partnership firm and assets of dock & Weikel and his entire interest in and to said firm of dock & Weikel and all the estate owned by said first party in said firm of dock & Weikel, including stock and materials, finished and unfinished, and all the machinery and fixtures of every nature and description and all the accounts and choses in action, due or unsettled, and belonging to the said firm of dock & Weikel, and also the good will of said partnership firm of dock & Weikel, and said second party Fred Weikel assumes and he hereby does assume all liabilities of every nature and description against said firm and is empowered to carry on the business of said firm of dock & Weikel hereafter in his own name of Fred Weikel and said partnership of Glock & Weikel is hereby dissolved and the said Fred Weikel, the second party herein, is the sole owner of all the estate of said partnership firm of Glock & Weikel both real and personal of every nature and description in fee simple and in his own name.
“To have and to hold the same with all the appurtenances thereon and the good-will in and to the same to the party of the second part, his heirs and assigns forever with covenant of general warranty.
“In testimony whereof witness the signature of the first and second parties this 24th day of August, 1894, at Louisville, Ky.
“Fred Glock,
“Fred Weikel.”
Thereafter, the business was conducted by Weikel, during a portion of the time as an individual, and during the remainder of the time, as a corporation. His right and title to the absolute ownership of the business was
A general demurrer was filed to the petition and sustained. The plaintiff declining to plead further, the suit was dismissed, and it appeals.
The writing set up in the petition, evidencing a dissolution of the partnership, was entered into in 1894, and, while it was treated by the parties as though it was a deed, it is apparent that it was, in fact, a dissolution of the partnership upon the terms then agreed upon between them. It was signed by both of them and, from its purport and necessary effect, must be treated as a contract. The effort now made is not to rescind the contract, but, while retaining the benefits received under it, to acquire still other benefits by reading into it other privisions, sought to be established by parol. The consideration which passed to appellant’s intestate is not seriously disputed, so that, it may be said that Fred Grlock, on said date, really received from appellee $7,200, or personal obligations of his to that amount were discharged, and he was, in addition, relieved from all liability on account of any indebtedness of the firm. The reasons which induced the retired partner to enter into the contract become unimportant, in the light of subsequent events recited in the petition. For, whatever may have been Fred Grlock’s understanding when he signed the writing, he must have known, when his former partner in 1895 refused to permit the books of the firm to be examined by his sister, that he was then not recognizing any right on the part of his former partner to get an insight into the condition or management of the business.
The object of appellant’s suit is for an accounting. Its right to prosecute this suit, under the facts of this case, should be denied under the general equitable rule set out in 30 Cyc., 721, where the author says:
“Even when plaintiff’s suit for an accounting, is not subject to'the statute of limitations, it may be defeated by his laches especially if, by reason of his long delay, defendants have lost their evidence, or been placed in a disadvantageous position, or it has become impossible for the court to do full justice to both parties.”
In Philippi v. Philippi, 61 Ala., 41, it was held that aversion to litigation is no ecxuse for failing to sue, after twenty years. This is the ground chiefly relied upon by appellant, in explaining the long delay in instituting suit. Again, in 16 Cyc., 150, the author says:
‘ ‘ Courts of equity, while sometimes bound by, and at other times following the analogy of, the statutes of limitation, also act independently of such statutes, refusing relief to parties, who have slept upon their rights, or have been negligent in asserting them.”
This principle was recognized in the case of Madox v. McQuean, 3 A. K. Marsh., 400, where, in denying the plaintiff the relief sought, the court said:
• “No relief will be granted to him, who, without excuse, has failed in his stipulations or has trifled with the contract by unreasonably delaying the performance of his part. This case, we conceive, comes within the influences of these principles, and furnishes an example where this extraordinary relief ought to be, and was properly refused by the court below. ’ ’
See also Perry v. Perry, 98 Ky., 242; Miller v. Baxter, 17 Rep., 1371; East Jellico Coal Co. v. Hays, 133 Ky., 4; and Predestinarian Baptist Church v. United Baptist Church, 139 Ky., 110.
The question of laches-is one of fact, to be determined by the circumstances of each case, and what is unreasonable delay in one case might not be considered such in another. But, we have found no case where the right to sue has been permitted to run until one of the parties is dead, and the conditions changed to the extent herein shown, which holds that the equitable doctrine of laches could not be applied. But, it is urged that appellee was acting in a fiduciary or trust capacity. His former partner might have so regarded the transaction, at the time it was entered into, but, when in 1895 appellee refused to permit the books to be examined, and made no accounting whatever to him, he must then have known that appellee was not recognizing his right to further participation in the business or its profits, nor can it be said that he was expecting appellee to wind up the business within two or three years, for, every act on the part of appellee relative to the business, evidenced just the con
Judgment affirmed.