130 S.E. 292 | W. Va. | 1925
This cause has been considered by this court twice before on appeal. See Kaufman v. Catzen,
The plaintiff's original bill sought a recovery of $30,000 advanced by the plaintiff to cover the prepayment of five years' ground rent upon the leasehold involved herein, and also a one-third interest in the enterprise in addition thereto. This claim was met by the defendants by asserting that the $30,000 so advanced by the plaintiff, Kaufman, under the contract between the said Kaufman and the defendant Aaron Catzen was not to be returned to him as such, but that the said Kaufman advanced said sum, and, in addition thereto, agreed to advance the additional sum of $20,000 to develop the leasehold, in consideration whereof he was then to have a one-third interest in the profits to be realized out of said enterprise and that the said Kaufman forfeited his right to the one-third interest in said enterprise by reason of his enmity and hostility to the development thereof. The circuit court decreed that the plaintiff, Kaufman, was not entitled to *81
the $30,000 advanced by him for five years' ground rent, but did hold that he was entitled to a one-third interest in the enterprise, and appointed a receiver to take charge of said enterprise. From this decree the defendants appealed to this court. Upon this first appeal the decision of the lower court was affirmed as to the holding that the plaintiff, Kaufman, was not entitled to recover the $30,000 advanced by him, and reversed as to the holding that the said plaintiff was entitled to the appointment of a receiver and a one-third interest in the enterprise. This court further held that while the said Kaufman did not forfeit his right to the one-third interest so purchased by him by the advancement of the said $30,000 for ground rent, that said one-third interest was, however, subject to be charged with all damages arising out of the conduct of the said Kaufman on account of any enmity and hostility exhibited by him against said enterprise, and directed the cause to be referred to a commissioner to make and state a report covering these questions. Kaufman v. Catzen,
We are not permitted to review any question heretofore decided in the present cause, as the party who loses in this court may not have the cause reheard by a second or third appeal. *83
The subject matter of the joint enterprise involved in this cause consists of a lease from the Northfork Realty Company for the use and occupancy of approximately forty-four acres of land. The grantee in this lease was the defendant Aaron Catzen. The term was twenty-five years from September 1, 1907, subject to a renewal at the expiration of the said twenty-five years for an additional term of twenty-five years. The contract between the plaintiff, Kaufman, and the defendant, Catzen, as interpreted by this court on the first appeal, is that Kaufman, in consideration of advancing to the grantee of said leasehold the sum of $30,000 to cover the ground rent for the first five years under said lease, was to receive a one-third interest in the rents and profits arising out of said enterprise, and that by reason of the contract thus established the parties to the same became and were co-adventurers in said enterprise, whose relation to each other and to said enterprise was similar to or the same as partners. The subject of joint adventure is of comparatively modern origin. It was unknown at common law, being regarded as within the principles governing partnerships. While some courts hold that a joint adventure is not identical with a partnership, it is regarded as of a similar nature, and is governed by the same rules of law. One distinction lies in the fact that, while a partnership is ordinarily formed for the transaction of a general business, a joint adventure relates to a single transaction, although the latter may comprehend a business to be continued for a period of years. 23 Cyc. 453;Saunders v. McDonough,
The first two grounds may be conveniently considered together. After the expiration of the first five years of the lease, the defendant, Catzen, procured contribution from others to make development and improvements of said leasehold. The Clark Development Company was formed and stock was issued to all who contributed funds for the development of the enterprise. The leasehold was assigned to said corporation on this account. Catzen contends that the hostility of Kaufman toward the enterprise made this step necessary to save the enterprise from failure. The plaintiff, Kaufman, urges this assignment or sale of the lease as a ground for dissolution. Ordinarily a partnership is dissolved by an assignment by one partner of all his interest in the partnership. Conrad v. Buck,
In the instant cause Catzen did not sell his interest in the joint enterprise, but changed his holding from that of an individual to that of a corporate holding. Catzen at all times has retained the controlling interest in the corporation. The plaintiff, Kaufman, did not urge the fact that such assignment was made as a ground for a dissolution in either of the former appeals. It has been held that the consent of the other parties may be implied from their conduct in thereafter recognizing the interest of the purchaser and cooperating with him.Bernitt v. Smith-Powers Logging Company, 213 F. 378; 33 C. J. 850. The court on the former appeal considered the fact of the sale or assignment and held that sufficient *86
ground for the appointment of a receiver had not been established. Kaufman v. Catzen,
The hostility between the parties and question of salary were shown in the former records and held by this court to be insufficient to warrant a receivership for the enterprise. However, in the present record the phase of the cause relating to the hostile attitude of the two principal litigants toward each other is more fully developed, thereby demanding consideration here. To do so, some of the principles of the relationship of co-adventurers will be helpful. One who has entered into a contract of joint adventure with another or others is bound to proceed with the enterprise until its termination. 33 C. J. 851. Neither party can withdraw from such a contract because it is no longer advantageous to him.Bane v. Dow,
It is apparent from the contract established on prior appeals, that Catzen and Kaufman entered into a joint adventure, looking to the development of certain boundary of land, as an addition to the town of Northfork, with the understanding that the adventure should be carried forward by them jointly, and that each should share in the profits, and that such adventure was undertaken by them, then each became bound to the exercise of good faith in the promotion of the enterprise; having "put their hand to the plow they must not turn back." The evidence discloses, and the findings of this court on prior appeals are to the effect that Catzen attempted performance of his part of the contract entered into, and stood ready at all times to further aid, as far as lay in his power, pursuant to their agreement, and loyal to the purpose for which it was created. He has been indefatigable in obtaining funds to make the enterprise a success. On the contrary, after the investment of thirty thousand in the enterprise, Kaufman has not only sought to abandon the undertaking, and recover back the money paid, but according to Catzen has tried to hinder the progress of the adventure. He refuses to make further contribution to the enterprise. All the circumstances combine to sustain Catzen's claim of loyalty to the enterprise and to show Kaufman's disloyalty thereto. Kaufman vehemently avers his good faith and pure motives. The circumstances clearly outweigh his protestations. His whole conduct is inconsistent with the theory upon which he predicates his right to a dissolution of the enterprise.
A receiver will not be appointed to take charge of a partnership enterprise unless it appear that the same should be dissolved. Collyer on Partnership, Sec, 353; McMahon v.McClernan, supra. In the absence of strong equities to support such a decree, a court will not interfere with the management of a joint adventure by the parties thereto and will not appoint a receiver to sell the land in which the capital of the joint adventures has been invested. Annon v. Brown, 65 W. *88
Upon this appeal, we are not at liberty to depart from the law announced in the cause on the previous appeals. The decision then made became the law of the cause, binding alike upon this court, and the parties on any subsequent appeal. 2 Herman on Estoppel, 118.
The record of this cause has been submitted to a careful consideration and analysis, and we have arrived at the conclusion that the decree of the circuit court in dismissing the plaintiff's bill in so far as it asks for a dissolution of the joint enterprise, appointment of a receiver and the sale of the property, must be affirmed. A further discussion of the cause would be productive of no good, and we have deemed it sufficient to place our decision primarily upon the grounds stated in the opinions of this court on the two former appeals. For the reasons therein and herein stated, the decree of the circuit court will be affirmed.
Affirmed.