64 Ind. App. 65 | Ind. Ct. App. | 1917
Appellant brought this action against appellees Delaney and Lyons as principals, and appellee Matthews as surety, on an injunction bond to recover damages for its alleged breach. A trial before a special judge resulted in a finding and judgment in favor of appellees. The questions properly presented arise on appellant’s exceptions reserved to conclusions of law stated on a special finding.
The substance of the finding is as follows: On and prior to September 13, 1911, Gubbins, Delaney and Lyons, under the firm name of John F. Gubbins & Co., were partners in doing brick, cement and street improvement work. On that day Lyons and Delaney filed in the Delaware Circuit Court their verified complaint making defendants thereto appellant and the People’s Trust Company of Muncie, alleging, among other things, that appellant had been guilty of certain misconduct as a partner and that he was insolvent; and praying for a dissolution of the partnership, that a receiver be appointed over its property and assets, that an accounting be had, and that an injunction issue against appellant and the trust company. The cause so instituted was
On November 1, 1911, after the trial had proceeded several days, Gubbins, Delaney and Lyons filed in open court a certain written agreement executed by them on October 26, 1911, in substance as follows: That the judge of the Delaware Circuit Court might refer the cause to the probate commissioner of said court to hear the', evidence and report his finding, and that to that end a longhand manuscript of the evidence already heard might be used as evidence; that the parties would submit their further evidence in a friendly manner, waiving technicalities, and with a view to arriving at a just accounting on the entire partnership business, and of all matters involved in said cause; that Gubbins should ’dismiss a certain slander suit commenced by him against Lyons, and that Lyons should make a proper retraction; that the firm of Gubbins & Co., with the consent of the common council of the city of Newcastle, should assign to Gubbins a certain street-improvement contract held by the partnership for the improvement of a public street in Newcastle, Gubbins to ' execute to Lyons and Delaney certain indemnity to save them harmless as against a certain bond executed by the . firm to secure the performance of the work; that Gubbins in performing such contract should have the free use of a certain concrete mixer, owned by the firm, such use to continue until the completion of the work, unless the mixer should be sold by the receiver of the partnership; that as soon as the assignment of the Newcastle contract to Gubbins had been accomplished, the court might appoint a receiver for the firm, who should take charge of all its property and assets, including assets derived from the Broadway work and certain other public improvement contracts performed in the city of Muncie, as to certain of which, not including the Broadway
Said agreement, as we have indicated, was filed in open court on November 1, 1911. The court thereupon ordered it spread of record, and rendered thereon and on the evidence that had been heard its finding and order, carrying out the stipulations of the agreement. Among the provisions of the order may be mentioned the following: The appointing of a receiver, with orders to take charge of the assets of the partnership, pay its debts and wind up its affairs under the order of the court, subject to certain matters to be determined by the court, as specified by the agreement; that the trust company pay to the receiver the amount of the Gubbins account, subject to the payment of the two checks outstanding; that the receiver give bond in the sum of $15,000. The court thereupon decreed the dissolution
On May 4, 1912, the court in cause No. 6624 adopted the finding of the probate commissioner as reported to the court, and thereupon rendered judgment and decree to the following effect: That the partnership was indebted to Gubbins in the sum of $87; that the partnership was not indebted to Delaney or Lyons and that neither of them was indebted to the partnership; that the receiver take notice of such facts in his distribution; that of the funds on deposit with the trust company in Gubbins’s individual name at the time of the appointing of the receiver, the receiver restore to the trust company $602.92, to be placed to the credit of Gubbins, such sum being private funds of Gubbins se
The correctness of the finding of the court in 'the case at bar, the substance of which is above set out, is not challenged. On the finding the court stated three conclusions of law, to the first and second of which appellant reserved exceptions. The third was adverse to appellee Lyons on a cross-complaint filed by him, and need not be further noticed. The first and second conclusions were to the effect that appellant was not entitled to recover anything, and that appellees were entitled to recover costs.
Note. — Reported in 115 N. E. 340. Injunction: dismissal of suit as a breach of the bond, 6 Ann. Cas. 401; enforcement of bond on the dissolution of a temporary injunction, 15 Ann. Cas. 721. See under (1-4) 22 Cyc 1027, 1028.