81 W. Va. 177 | W. Va. | 1917
This suit-was brought by one of two partners primarily tO‘ obtain against the other a decree for half the initial.cost of-the equipment necessary to operate a moving picture show. This equipment plaintiff agreed to furnish and install at hi,s' own expense, one half of the total cost of which defendant
Though conceding that the parties contracted to become associated together upon the' conditions stated and to establish and promote the business, defendant denies that plaintiff so far complied with his undertaking as to bring into existence the actual social business relation. But it seems clear they formed and conducted the joint enterprise from July to October, 1914. Jones furnished the machinery, and he and defendant united in its installation, opened the show, participated in the management and promotion thereof, received and applied the proceeds, consulted and advised with each other, and performed or united in the performance of such acts in reference thereto as usually indicate the existence of the social relation between partners.
The defendant assigns as erroneous entry of the order of reference* made in the cause on the first day of April, 1915, the ground of objection being that the decree assumed as duty established by proof a fact of vital importance affirmed by the bill and denied by the answer, namely, that the parties had formed a partnership as contemplated by the agreement between them. While not expressly adjudicating that question, the order does so impliedly, without any proof on that issue. It directed an inquiry to ascertain the propei’ty, debts and liabilities of the partnership, and the contributions to its capital, and a statement of an account of the receipts and disbursements in the furtherance of the joint enterprise. To the entry of this order, however, and the performance of the work required, defendant did not object or protest. The parties appeared before the commissioner, introduced their proof, and on it he based the findings approved by the subsequent decree. Nor did defendant except to the report made pursuant to the order on the ground of prematurity of' the reference. This participation without objection precludes reliance thereon for the first time upon this review. Dewing v. Hutton, 48 W. Va. 576.
The principal ground of complaint, the one fatal to it as
It is not a sufficient answer to these authorities to.say, as plaintiff contends, that the debt decreed is the individual liability of the defendant. In a sense it may be a debt due from him; but, if it is, it was incurred for the benefit and promotion of the common object. The plaintiff agreed to purchase and install the equipment. It was his conditional contribution to the capital of the concern, as much so as if he had advanced money upon the same condition. Legally, neither partner can enforce a dissolution, or obtain a decree against the other, until after the true status of the accounts, debts and liabilities of the partnership is ascertained. Such a settlement may show that plaintiff has already received an amount in excess of his claim; wherefore, instead of a recovery against his associate, the latter may obtain a
As the decree must be reversed because prematurely rendered. it is unnecessary to pass upon the various exceptions taken by defendant to the findings of the commissioner. If erroneous, the adverse rulings may be corrected on the ascertainment of the true status of the accounts between the parties and the liabilities of the concern. However, it may be said-with propriety, in this connection, that the appointment of a receiver to convert the assets into money and apply the proceeds as therein directed, and the further reference to a commissioner with authority to settle all accounts, do not crire the improvident or premature entry of the decree fixing liability against the defendant. In the meantime he would be subject to the peril of a personal adjudication against him, one from the effects of which he -might not be able to escape. Plaintiff might enforce payment, and if he is or should become insolvent defendant would be remediless, however much plaintiff may be indebted to the concern. The ascertainment of the actual status of partnership accounts is essential to a just decree fixing the liabilities of partners inter sese.
Decree reversed and cause remanded.
Reversed and cause remanded.