Haworth v. Jackson, 156 P. 590

156 P. 590 | Or. | 1916

As between the plaintiffs and Manning, this is a suit to dissolve the partnership and for an accounting concerning the affairs thereof. It is impossible to discern what interest or liability attaches to either Jackson or Burpee in relation to that matter. The allegations of the complaint utterly divorce them from any right or interest in the property involved. Taking that pleading most favorably for the plaintiffs as against Jackson, it appears therefrom that he was in mere possession of one of the notes given by Manning on account of the purchase price of the truck. Whether it was overdue or not is not stated. We could not therefore apply the doctrine of Reinstein v.Roberts, 34 Or. 87 (55 P. 90, 75 Am. St. Rep. 564), to the effect that a chattel mortgagee after condition broken has a qualified property in the pledged chattels. Hence the complaint does not disclose any title of Jackson in the truck. It is not even charged that Jackson was the owner of the note. It is only said that it was in his hands. It is not stated that anyone deprived the plaintiffs of any title to or possession of the property. For all that appears, they may yet be in the custody and enjoyment of the machine. All they charge against Jackson is that "he attempted to execute an alleged and pretended transfer of said auto truck to the defendant Herman S. Burpee." They did not impute to the latter any act whatever, or attempt to profit by the doings of his alleged grantor. But supposing Jackson, "without any right either in law or equity to do so," using the language of the plaintiffs, had actually taken the truck away from them, even then they would have ample remedy at law by replevin or trover as against him or anyone claiming under him, provided, of course, they had the right to the custody of the property. Therefore a suit in equity will not lie for a redress of that grievance. The complaint does not state facts sufficient to constitute a cause of suit against Jackson or Burpee, and therefore there was no error in dismissing the proceeding as to them. This result is not dependent in any way upon the terms of the original agreement between Manning and Riggs. It rests solely upon the insufficiency of the primary pleading, which can be urged at any stage of the litigation.

Respecting the accounting, the testimony shows that G. C. Haworth was the father of J. Brooks Haworth. The articles of partnership provided that J. Brooks Haworth should be employed in the actual operation of the truck, while Manning should have charge of the funds and other business of the venture. There is no evidence whatever to sustain the allegation that Manning misappropriated moneys to himself. From the testimony of Mr. Moser, a certified public accountant, whom Manning and the Haworths engaged to state the affairs of the concern, it appears that the books kept by Manning were not so correct as if they had been written by an expert bookkeeper, but that there is no indication from them that there was any dishonesty on his part. At the request of all the partners, Moser stated the account between them, using the books and other data which they furnished to make up a report of the affairs of the concern. This É sum É was signed by the elder Haworth and Manning. J. Brooks Haworth testified thus:

"Q. When this signed statement that has been offered in evidence was signed, by your father and Mr. Manning, where was that ?

"A. At Mr. Moser's office.

"Q. At whose request was that had?

"A. You mean the accounting ?

"Q. Yes.

"A. The request was made by all four of us, to get the business settled up. * *

"Q. Your father told Manning he wanted an accounting, before this was made up? And they went down there to see what kind of a statement could be made up ?

"A. That is the statement that was made up.

"Q. Were you present?

"A. Yes.

"Q. Did you make any objections to that to Mr. Manning?

"A. That copy right there [indicating] ?

"Q. Yes.

"A. I made no objections to it, no.

"Q. Did you hear your father make any objections to Mr. Manning about it, not what he said to you?

"A. No objections to the accounting; the accounts were all correct, I guess."

Moser testifies that all parties were present when the rough draft of the statement was prepared by him, and that they afterward came back to inspect the type-written copy which was signed as already mentioned. No testimony was offered by any of the defendants. That produced by the plaintiffs shows clearly that an accounting was made.

The sale of Manning's interest to Armstrong worked out a dissolution of the partnership, and it was not necessary that the consent of the plaintiffs be obtained; "for what a man hath that also can he sell."

"In most jurisdictions, in this country, although not in England, a partner may work a dissolution of the firm by withdrawing or selling his share in the partnership or by selling the entire firm's property without the consent of his copartners": 30 Cyc. 653.

This rests upon the doctrine that, while a partner may thus withdraw from the firm, he cannot force upon his former associates a new one without their consent. All that remains is the obligation to account to the original partners concerning the transactions of the late firm.

It is impossible to construe the complaint as one to redeem the property, and there is no evidence before us by which we could frame such a decree, even though the pleadings would sustain it. There is enough, however, in the record to justify us in affirming the decree of the Circuit Court with this modification, that it be without prejudice to the right of the plaintiffs or of Manning or anyone claiming under either of them to bring suit to redeem the truck, as indicated inMcDaniel v. Chiaramonte, 61 Or. 403 (122 P. 33).

It is so ordered. MODIFIED.

MR. JUSTICE MCBRIDE, MR. JUSTICE BENSON and MR. JUSTICE HARRIS concur.