Kisling v. Barrett, 34 Ind. App. 304

Kisling v. Barrett

34 Ind. App. 304 | Ind. Ct. App. | 1904

Henley, J.

Appellee and appellant were partners engaged in the business of operating a sawmill. They were unable to agree as to the manner of conducting the business, and on the 22d day of Eebruary, 1902, appellee began an action against appellant, asking a dissolution of the partnership, an accounting, and the appointment of a receiver to take charge of the firm’s assets and to close up the business of the firm.

In his complaint, appellee avers that the partnership agreement was entered into on the 22d day of June, 1898, and was to continue for an indefinite period'; that on said date the partnership purchased a sawmill, and has since that time operated and carried on the business of running said sawmill; that, under the partnership agreement, they were to be equal partners in every way, including expense, profit and loss; that both parties have, during the continuance of the partnership, done and performed labor for the partnership, and have each furnished money for the purposes of the business; that appellant has had the partnership do a large amount of work for him, both in sawing and hauling lumber; that appellant has converted to his own use a large amount of the goods belonging to said partnership, and has refused to account to appellee or to the firm for the work and labor done and performed by the firm for him; that appellant has collected a large sum of money from the customers of said firm, and has refused to account to the firm or to appellee for the same; that the partnership has *306assets consisting of the sawmill business, stock on hands and accounts due, and has indebtedness to the amount of $.100; that appellee has demanded of appellant a settlement and adjustment of the affairs of the partnership, but has been unable to make any settlement or agreement thereof. Appellee’s complaint concludes as follows: “And he says said defendant has converted to his own use a large amount of the assets of said partnership, in moneys collected and received, for which he has not accounted, and owes said partnership a large amount for sawing and other work, which plaintiff can not give for the reasons hereinbefore stated; that there is a large amount due to this plaintiff from said partnership for moneys advanced and paid to said partnership, and for work and labor done, and he alleges, on final adjustment of all the mutters, that the said defendant will be indebted to said partnership in a large amount, and said partnership will be indebted to said plaintiff in a large amount, for money paid and work and labor done, but the ecsact amount he has no way at this time of ascertaining, on account of said defendant’s refusing to furnish the books which he has possession of, or to render any account to this plaintiff of said partnership matters; that said partnership matters, on account of this disagreement, are suffering, and will go completely to -waste, and neither will permit the other to operate the business; that said partnership should be dissolved, for the reason that said defendant refuses to join with plaintiff in dissolving and winding up said business and disposing of the property and fully and completely settling their accounts; that plaintiff and defendant can not agree upon a settlement of their partnership matters, and the defendant will not allow' the plaintiff to proceed in the operation of the business, and will not furnish to plaintiff the accounts by which he can make the adjustment and settlement. Wherefore, plaintiff prays that said partnership be dissolved; that he have an accounting of the partnership affairs with said defendant; that said defendant be *307compelled to account for the partnership assets in his hands and amount due to said partnership from him, the said defendant, and that said business be fully and finally settled ; that the court ascertain the amount of all debts owing by said partnership to third persons, and the expenses, and the plaintiff’s interests therein, upon the said accounting, dissolution, and settlement of' said partnership, be ascertained and fixed; and he further prays that a receiver be appointed to take charge of said business of said partnership assets, and dispose of same under order of this court, and make proper and full disposition of the proceeds, such as the court may order upon a full accounting and settlement of said partnership affairs and payment of all debts, the adjustment of the amount due from and owing by each of the partners, and a full and final adjustment of said partnership; that, upon the court’s taking charge of the matters, the property should be turned over to the receiver, and plaintiff and defendant he ordered to account to said receiver for all amounts received by each, and have credit for all amounts due each.” - Appellant answered by general denial. There was a trial by the court. At the request of the appellant the court found the facts specially, and stated conclusions of law thereon. To each of the conclusions of law the appellant excepted.

The facts as found by the court were that, on the 21st day of June, 1898, appellant and appellee entered into a co-partnership under the firm name of Barrett & Kisling, for the purpose of purchasing and operating a sawmill; that they were to be equal partners, and were each to share equally in the profits and losses of the business; that said partnership was for no fixed term; that on said last-mentioned date the firm purchased a sawmill, together with a lease on certain real estate upon which they located the sawmill, and upon which was already located a dwelling-house and outbuildings, and that they paid for said mill and lease the sum of $800; that they took possession of the sawmill *308and premises oil tlie 21st day bf .Tune, 1898, and carried on tíre business of running said mill until about the 15th day df Tanuafyj 1&025 when appellee requested of appellant an accounting and settlement of the partnership affairs, which appellant refused to make; that appellee began this action on the 22d day of February, 1902; that Byron McMahan was duly appointed receiver of said firm on the-day of August, 1902, and, as such receiver, sold the sawmill, with its appurtenances and the lease of the real estate and premises, and now has in his hands, as such receiver, the sum of $276.25; that appellee paid on the purchase price of said sawmill the sum of $255; that he has paid in cash for operating expenses of said firm the sum of $1,481.77; that he has performed work and labor for said firm at an agreed price in the sum of $227.50; that he has hauled lumber for said firm, which work was of the value of $112.30; that he has hauled logs for said firm, which work was of the value of $157.17; that he has done other work and labor for said firm to the amount of $71.94 — making a total of cash paid into said firm and of work and labor done by appellee in the siim of $2,315.68; that the said appellee has’received from the said firm credits amounting to the sum of $2,199.91. It is further found that the appellant has paid into said firm and is entitled to credits amounting to $2,482.98, and that said appellant has received from the firm, and is chargeable with cash received and labor done by said firm for him, the sum of $2,788.29 ; that all the indebtedness of said firm is paid, and that there is due said firm from other parties the sum of $224.57; that the said sum of $224.57 and the sum of $276.25 in the hands of the receiver, as aforesaid, constitute all the assets of said firm, except the amount due said firm from the appellant Kisling; that the costs of this action, including the, entry of final judgment and decree, are $204.50.

1. Under the head of errors relied on, counsel for appellant set out fifteen specifications of alleged error in' their *309brief. Before talcing up and disposing of these alleged errors, it is -well to say that this is a suit in equity, in which both parties are before the court to do and receive equity. Its purpose was to secure a general accounting of the matters connected with the partnership, and fully to close up the same. The averments of the complaint are broad enough, under which evidence might have been properly introduced to sustain any matter which has been found by the court in its special finding of" facts. It is hardly necessary to cite authorities to the effect that this is an equitable proceeding. Miller v. Rapp (1893), 135 Ind. 614; Briggs v. Daugherty (1874), 48 Ind. 247; Kimble v. Seal, 92 Ind. 276.

2. The exceptions to the conclusions of law admitted that all the facts were fully and correctly found which were within the issue presented. Consequently, appellant’s first, second, third, fourth, fifth, sixth, seventh, eighth, ninth and tenth errors relied on are not presented by exceptions to the conclusions of law.

3. To show the character of the errors relied on, numbered from one to ten, we set out the third: “The-finding of the court that appellee is entitled to a credit of $112.30 for hauling lumber for said firm.” This item was clearly within the issues presented, and, being within the Issues, the only Avay it could have been objected to, if not sustained by evidence, would haAre been by motion for a neAv trial, and by bringing the evidence to this court for consideration. This, appellant has not done. If there was no evidence to sustain any of these various facts found by the court, or if improper evidence was introduced from which the court made its finding, the error could only be presented by bringing before the court the evidence introduced upon the trial of the cause.

4. In its conclusions of law, the court, after directing the payment of the costs of the trial and of the receivership, and directing the payment of the amount found due the partnership from appellant, rendered a judgment in accord-*310an.ce with, the, facts and conclusions of law, by which appellant and appellee each received one-half of the proceeds of their partnership. This was exact justice, and in exact conformity with the agreement of partnership between the par- . ties to this action.

There are no questions presented by this appeal which justify a reversal of the judgment. Judgment affirmed.