128 P. 601 | Mont. | 1912
delivered the opinion of the court.
Action by plaintiff to obtain a decree dissolving a partnership existing between himself and defendant, under the firm name of N. D. Cattle Company, and an adjustment of the partnership affairs. The partnership was first established between the parties by oral agreement on April 27, 1901, for the purpose of conducting a cattle business in Chouteau county. It seems that the agreement at that time was that the plaintiff was to furnish such cash capital as was necessary to start the business, and that defendant was to give his personal time and attention to its management. They were to share equally in the profits. On July 30, 1902, they entered into a written agreement in which the assets then belonging to the firm were estimated to be $15,000. It was stipulated that each partner contributed one-half of this sum and that the partnership should continue for the term of ten years. The defendant was designated as the manager. He was to give his whole time and attention to the business, consulting the plaintiff, however, at all times as to its financiál affairs and recognizing him as its financial head. Each was to use his utmost skill and endeavor for the.joint profit and advantage. They were to discharge equally all rents and other expenses, to divide all gains share and share alike, to bear equally all losses, to keep books of account in which should be recorded faithfully all transactions conducted by either partner. These were to be accessible to both at all times. On December 31 of each year, and oftener if necessary, each was to render to the other a full account of property in his hands, of profits and increase theretofore made, as well as losses, if any, and of all receipts and disbursements, and “clear and adjust, each to the other at the time, their just share of the profits so made as aforesaid.” It was further stipulated: “That at the end, or other sooner determination, of the copartnership, which shall be discretionary with either party, that is, at any time said partners become dissatisfied and disagree, a true inventory of the stock shall be taken and the price affixed, and it shall be compulsory
The complaint alleges the formation and existence of the partnership and the possession by defendant of all the property belonging to it. It charges the defendant with negligent and extravagant management of its business and property, with disposition of property for which he had failed to account, with use of some of the property for his personal profit, and with failure to account in accordance with the terms of the agreement. It charges, further, that he has been withholding from the plaintiff information concerning the condition of the business, with the result that there has arisen disagreement and dissatisfaction between plaintiff and defendant as to its management; that defendant has refused to sell his interest or to buy that of plaintiff at any reasonable or fair price, and that plaintiff and defendant have been unable to agree upon any amount for which either may buy or sell. It charges, further, that the partnership has fallen greatly into debt; that the plaintiff claims an interest therein superior to that of plaintiff, and that for these reasons and the other matters alleged, it has become imperative that the partnership be dissolved and its affairs adjusted. Soon after the filing of the complaint the court, upon the application of plaintiff, appointed a receiver to take charge of the assets of the partnership pending final hearing. The answer admits the formation of the partnership and possession of all its property by defendant as alleged, but denies all the allegations of misconduct on the part of the defendant. By way of counterclaim, after stating somewhat in detail the history of the partnership from its first inception in 1901 to the time this action was brought, it alleges that on or about July 30, 1907, the plaintiff and the defendant came to a mutual accounting of their affairs; that plaintiff, being desirous of withdrawing from the partnership, re
At the trial the defendant seems to have abandoned entirely his claim for damages. After a jury had been called there was some discussion between the court and counsel as to how the hearing should proceed. Counsel for plaintiff suggested that there should first be determined the question whether the partnership had been dissolved by the settlement made in 1907, their theory being that if this issue were determined in favor of defendant, he would be entitled to judgment; otherwise the plaintiff would be entitled to the relief demanded in the complaint. The court adopted this suggestion and ruled that the jury should be required to find on this question only. To this ruling counsel for defendant excepted. It was also ruled that the burden was upon the defendant and that the hearing should proceed accordingly. At the close of the hearing the court instructed the jury to find on the question indicated by counsel, and also upon the further question whether before commencing the action the plaintiff had offered to buy the defendant’s interest upon reasonable terms and had offered to sell his interest to defendant on like reasonable terms. The jury answered the first question in the negative and the second in the affirmative. Subsequently the court adopted these findings. It found further that
The first assignment counsel make in their brief is that the court erred “in limiting the trial to the single issue whether or not the defendant had purchased the plaintiff’s interest in the copartnership.” Instead of noticing the question presented by the assignment, counsel devote almost the whole of their argument to the question whether the evidence is sufficient to sustain the first finding. They insist that the finding is not supported by any evidence other than the statements of plaintiff, which, when viewed in the light of all the facts and circumstances appearing in the case, is wholly unworthy of credit. In this counsel are in error. It appears without question that at the inception of the partnership in 1901, the plaintiff advanced for the purchase of stock, etc., the sum of $3,000. Part of this ($1,000) was paid in cash; the rest ($2,000) was represented by a promissory note executed by plaintiff to pay the balance of the purchase price, which he thereafter paid with interest to the amount of $250. It appears also without question that when the formal agreement was made in 1902 the plaintiff demanded and received from the defendant a note for $3,250, with the understanding and agreement that at the end of five years he was to receive payment of this sum out of the assets of the firm, but without interest. This is established not- only by the testimony of plaintiff, but by that of Kendig, the firm bookkeeper, and by Carnal, the firm attorney. The settlement referred to in the pleadings as having taken place on July 30, 1907, actually took place in December of that year. It occurred at a room in a hotel at Havre. There Were present the plaintiff, the defendant, Kendig and Carnal. Up to
It is argued that while the defendant was required to
It is argued under this assignment, also, that since the partnership agreement designates the course to be pursued in order
The witness Carnal had acted as the attorney of the firm from the date of its inception. He was called by plaintiff to testify
The witness McDonough had been counsel for defendant upon the application' for the appointment of the receiver, and had joined in the conference with counsel for the plaintiff which resulted in the stipulation referred to above. He was permitted
The stipulation was properly admitted. It contained a specific recognition of the existence of the partnership at the
Error is assigned upon other rulings upon questions of evidence, but they are not of sufficient merit to demand special notice.
Finally, it is said that the decree does not specifically determine all the rights of the parties. We understand that by this statement counsel mean that it was incumbent upon the court to determine in the decree whether, upon an adjustment of the account between the parties, the notes held by plaintiff should be a charge in his favor against the partnership assets. In this counsel are again in error. All questions touching the items of charge and credit as between the partners, including the disposition which should' be made of these notes, are to be determined upon the taking of the account, subject to correction by the court when the final result is submitted to it for approval.
The decree and order are affirmed.
Affirmed.