*1 TEEM, 1923. Lupton v. Horn —193 499. by pertinent facts, might properly
other be considered township county superintend- trustee and determining wagon 2. ent in the school shall long be driven. But officers are not so as those shown in them have abused the discretion vested law the courts cannot to control their action. interfere Whether it better for children to cross four small foot, day rаilroad each or for a twice school wagon with children in across four to be driven day, question times each to decide for the officers laying wagon. out a route for the No error school sustaining was committed a demurrer complaint. is affirmed.
Townsend, J., absent.
Lupton et al. v. Horn. 23,775. April 29, Rehearing Filed denied October [No. 12, 1923.] Partnership. Wrongful Partnership. Termination — —Ac- Damages by Jury. tion atOne Law.—Triable —A recovery partner- for breach of a contract of ship by 'wrongfully terminating reorganizing it and firm the' including plaintiff without therein is not based on contract granting by way so as to be incidental of an relief account- ing money the hands of they charged the defendants which are with not for, recovery only law, but therefor can be аn action at by jury. p. triable Partnership. Accounting between Partners.- —Interest Lost. — Finding. —Special accounting by an action for an de- —In , fendants, findings members of a bank that de deposited fendants another funds interest, them controlled at two and three bank might they per cent., have otherwise whereas obtained six any finding any profit made out transaction, any finding from which it could in ferred that defendants had in their hands obtained from SUPREME COURT OF
Lupton v. Ind. 499. Horn —193 account, that source for which were liable to are insuffi cient sustain a conclusion of law that entitled to recover of the defendants the difference between d obtained, pai could and that which have *2 p. 504. Partnership. Accounting between Partners. —Good Will 3. — Partnership. Special Finding. action for an account- — —In ing by defendants, partnership, members of a bank finding partnership dissolved, that at the time the as complaint, good partnership will of the great value”, “of was, finding of what that value any property, or passed or value from that source defendants, directly to the indirectly, for which the defend- account, ants should is insufficiеnt to sustain a conclusion of law that proportionate entitled to recover her good of the p. value of the will. 505. Partnership. — — Accounting 4. between Partners. Value of Property Partnership. Finding.—In an action between — partners accounting, general for an terms, follow- ing specific findings the actual value of the partnership dissolution, at the timе deducting after liabilities, sum, amounted exactly equaled to a named the total of the values property specifically of several items of findings, enumerated in the cannot be understood otherwise than as a restatement specific of what had been set out in the findings, disregarded and must be when some of the items were issues, p. within the 506. Partnership. Accоunting 5. between Dissolu- — Partners. —After Evidence.—Admissibility.—Where banking partnership tion. — was partners comply terminated the refusal of one of the private regulating banks, with the law in an action between partners thereafter for an the market value of the before dissolution of the issue, was not in expert and the testimony admission of as to error, value, objectiоn, p. over Partnership. Accounting between Partners. —Demand — for Accounting. Unnecessary. has —When —Where accounting unnecessary, a demand for an in an accounting action for an profits proof of a demand on the defendants for such is not action, necessary to make out the cause of From Court; Wells Circuit Smith, David E. Special Judge.
Action
against
Lupton
Lenora Horn
G.
Ambrose
Lupton v. Horn —
Miller Vaughn Eichhorn, & E. C. H.W. appellants. Jaqua, Frank Kelly, B. Clark Lutz J. and John J. appellee. appeal. J. This is a second The com
Ewbank, plaint paragraphs, out, two substance, set opinion on appeal, unchanged. the former remains Lupton Horn N. E.
After the rеmanded, cause was filed paragraph answer, of affirmative in addition to the previously denial filed, alleging therein that the con- tract of partnership set out in the was termi- “by nated mutual parties executing consent of all the *3 it”, 30, on June 1905; that, time, at that it was ascer- tained that there plaintiff (appellee), due as her interest in the the $5,800, sum of and that & dеposit certificate of in the Pennville Bank for that amount was drawn in her July favor under date of accepted by and was equivalent her the as of right, her title and interest in the prop- erty, ascertained, as so placed and that she it in said subject bank to her order. Also that defendants now brought such subject certificate order, into court to her benefit, fоr her use and allegations and that all material complaint thereby admitted were denied. Appellee replied by general origi- denial. One of the nal died, defendants thereafter appellant and Gemmil, the estate, as brought administrator of his in supplemental complaint, gen- and filed an answer of eral complaint supplemental deniаl to complaint. the and cause was jury, tried the and, court without a upon proper request, the special court made a finding OF COURT SUPREME law stated facts,
of a conclusion of on which from (appellee) to recover the was entitled appellant Lupton code- of his deceased and estate thereon $7,852.80, fendant the sum of with making April time a demand on of 1906), (suit having May 11, in commenced making she should $6,174.73, sum of a total for which costs; together judgment with recover of $14,027.53, finding upon rendered was afterward finding. amount, latter of the date of Appellants excepted of duly to the conclusion law. appellant trial for for a new
Each also filed motion (a) is alleged that: each of the reasons contrary evidence; (b) is sustained sufficient law; (c) of recov- that the of the amount assessment ery erroneous, being large; (d) that the is too admitting excessive; (e) are court erred refusing out certain evidence. and in to strike assigned Appellants have error the conclusion found, overruling the motion upon the facts law trial. paragraph of eаch The substance 356, 357, 358) $5,000 (182 is that owned Bank, capital Pennville only $15,000; that bank said was dissolved to have been and, 30, 1905, dissolution, at the time of its on June earnings $20,000; that de- net value hand managing partners were the fendants part of funds in business of another used bank interested, latter bank loaned funds, never accounted to the Pennville Bank *4 thereof, anything and it never received the use took therefor; that over the and assets Bank, and all its and of said Pennville books business paid debts,, to all of account papers, and but refused same, to over plaintiff for her pay Ind. 499. Horn —193 bank, together by her in the amount her the invested profits, which she she with her interest complaint al- paragraph of the had demanded. One including leged Bank, that the Pennville assets of the by de- capital profits, and of share part- in a turned over to and invested fendants member, nership not a of was at the the Pennville Bank continued the business of para- place operated. same it The other had graph alleged all of such that the defendants converted their assets to own use. appeal, expressly adjudged that
On former was equitable this an action for an of is jurisdiction (§418 1914, 1881), and R. Burns S. §409 refusing a that no error committed in therefore supra. by jury. Lupton, trial Horn v. allegations paragraph
There were also each some part- to the effect nership of which and defendants were years period ten members was formed for of February 1901, subject right of any “at the еnd of partner therefrom withdraw notice”, year giving the al- three and that months leged than five when less dissolution June wrongful years elapsed, acts had effected defendants, of, that, complained by the dissolu- time, plaintiff ex- tion of the lost might pected profits have been earned in ten-year period, thereby dam- remainder of argu- appellee’s suggests, way aged; brief ment, there “fraud and bad faith on the * * * managing partners of the bank appellee of their to force out scheme execution right that a partnership.” But aside from facts any year dissolving at the end profits reserved, expressly future *5 504 COURT OF SUPREME merely speculative by which are cannot be recovered suit, a number of averments which be essеntial would damages to make out a for cause action for breach complaint. contract are not found in the Neither recovery would the for of the con- breach partnership by wrongfully terminating tract of such reorganizing banking contract and firm in- cluding plaintiff, merely granting incidental relief by way money of an and plaintiff may they the hands of defendаnts which have turned over to the firm or converted damaged by to their own use. If wrongful termination of the before the time partnership agreement, gave fixed fact her only right law, at of action issue would jury. be triable Hoosier Const. Co. v. National App. 270, Bank N. E. 1006. 73 damages, any, part if Such were of the trust managing partners possession, fund of which the had alleged they and for which failed to account. appears It from what has been issues only solely submitted trial were whether property constituting defendants had received or thereof, interest or they pay failed to account for plaintiff, over to or they had converted to the use of themselves others, whether, true, if that right by accepting surrendered her of аction a certifi- $5,800 deposit cate of in full settlement.
There deposited funds were they findings did draw interest. con- that, a recital tained of the funds of the Penn- Bank, put 2. ville into a certain bank of which were stockholders and directors general deposits for certain which the Pennville Bank only per cent., received interest at the of 2 rate Lupton v. Horn —193 only deposits
certain it received interest time for which cent., amount of per in the total rate of actually $4,031.27 and accounted received for, amount of such of the total whereas 6 being deposits $9,748.64, $5,717.37 have been would paid excess the other bank of what was so deposits, Bank for the use Pennville loaned have “said bank could at all times *6 mоneys carried and or its said so otherwise invested deposited (other) that the would same so profit thereon.” have it 6 or earned any- finding that or But there the defendants was body the trans- profit behalf made out of their action, that anything to conclude nor from which from money in their obtained defendants had hands that to account. Nor source for which werе liable guilty any finding was that the there depositing money, the even faith in fraud or bad so not) (as any pleading if there been there was tendering that issue.
Findings that, partner- time were made at the the ship was member was of which good great the “of the will of was finding value”, but there was no what that was, money, any property, that value nor passed that source to defendаnts or to the value defendants could be for which made Omitting $5,717.37, said amount to account. might the Pennville Bank have received
the court found per cent., loaning money at 6 it the but which does actually by anybody, received as to so find was presumably and a sum subject al- good will, the and the value of values lowed as findings very special fall far short of itemized findings. appellee by amount awarded finding general terms also a was There OF SUPREME COURT Horn —193 property, actual market value of all assets busi- partnership at ness of the the time of dissolu- tion, deducting liabilities, $31,411.20, after plaintiff’s one-fourth interest was $7,852.20. special finding duly But asked specifically property court found con- subject values, of certain sisted items of named to cer- liabilities, tain part stated of those items were not issues, finding recoverable under the do not we think general property terms that the value of the awas sum, just equal named to the sum of the values of the items, several can be than understood otherwise aas restatement of specific what in the had- set out findings. give finding cannot it
We
of a
effect
$81,411.20,
valuе
one-fourth
$7,852.20,
including
specifically
the items
set out in the
findings
which were
within the
issues.
as to
might
interest which the Pennville Bank
have
by loaning
earned
deposited
*7
good
other
and as to
value
will,
of the
were'
issues,
disregarded.
within
and must be
Wills
Mooney-Mueller Drug
193,
Co.
App.
200, 201,
special
The evidence 30, showed that on June 1905, appellee expressly join refused partners to her executing articles of such as expressly required statute parties all the inter- private
ested a execute, bank to acknowledge file the Auditor of with July State not later than without which was unlawful to continue in private bank, a as business and that she never did exe- acknowledgе articles, cute or such partner- that the 507 by thereby of terminated force ship firm’ was 182; seq. et p. also see §3402 statute. Acts question hypothetical A Burns Acts 1907 ex- put examined as to each of several was witnesses of calling market value perts, opinion as to the for an plaintiff's partnership business as in the interest defendants, going concern, by each objections and over testify value was permitted of to that such them was being action error. sum. This was substantial interest value of her the market for an partner- going the dissolution concern before ship not in issue. to the must, evidence as
Disregarding,
as we
might have earned
the bank
amount of income which
cent,
money deposited
by loaning
per
at 6
the sums
cent,
respect-
per
and 3
in the other bank
to have
possible
is shown
ively,
income
none of which
else,
anybody
the defendants
been received
good will of
value
the evidence as to the
if the
have had
the Pennville Bank would
expert
evidence as
and the
Banking partner-
plaintiff's
value
concern,
going
obvious
and it is
ship as a
appellеe
prove
remaining
evidence fails
large an amount as was awarded
recover as
entitled to
finding.
the amount
Therefore
to her
large.
being
erroneous,
recovery
too
insufficiency
alleged
complains
Appellant
’
tending
prove
demand
the evidence
upon
one
was made
action was
this
com-
before
of the defendants
menced,
evidence admit-
insists that certain
But,
incompetent.
under
purpose
ted for that
not neces-
joined, proof
a demand was
issues
Anderson
action.
sary make out the
cause
*8
SUPREME
OF
COURT
v. Ackerman
481, 485;
Hanna Mc
Laughlin (1902),
292, 158
Other may not discussed counsel arise upon another trial of the cause. reversed, grant
The with directions to trial. Rehearing.
On Petition EWBANK, J. The articles contained stipulatiоn “any may that partners of said with- copartnership any draw from said year at the end of by giving three months’ notice of withdrawal.” The required, penalty statute imprison- under of fine and ment, so, July 1, failure do that on before 1905, every partnership doing business should file with the Auditor detailed State state- ment, copy “a should include the articles of * * * copartnership acknowledged executed and. parties interested therein.” Acts 1905 complaint specifically averred on June part- the defendants terminated and dissolved the nership, May 11, and suit was first commenced No facts were stated the effect that mismanaged fraudulently had the business earning wrongfully kept prof- it from its, directly alleged large profits it was earned, was demanded. There averment ever acknowl- join edged, acknowledging, or offered to the articles any nor was there evidence or made such offer. she Appellee’s (1) are: authorities those which relate upon wrongful in an action based acts of partner of a breach contract brought long a dissolution was about before he had a right partnership; (2) lawful terminate suits TERM, 1923. *9 Admr., Smith, v. Hart —193 509.
asking existing partnership that an be up for miscon- appointed its business receiver to wind partnership in breach of the duct defendant and an ac- agreement; asking (3) such dissolution out of the counting fraudulently taken propérty for final assets; (4) settle- aside suits set alleged fraud affairs because ments plaintiff make such procuring of the defendant retiring partnership. None on settlement presented a case as was these control such pleadings in bar. the case rehearing is overruled. petition for J.,
Townsend, absent. Hart. Administrator, Smith, Rehearing 24,234½. Denied October 1923. March Filed [No. 12, 1923.] Appeal. Taking Appeal.— Estates. —Time —Decedents' for proceeding judgment con- aрpeal in a an from a Statute. —In estate, (§2978 Burns statute with a decedent’s nected perfecting an §3) expressly for p. 66, limits the time Acts 1913 on over- days judgment final appeal becomes to 120 after the trial, time should ruling unless the for a a motion p. the law. manner known to extended some Appeal. Perfecting. Time.—Inherent —Time —Extension of in a matter conneсted Power Court. —Where a 2, by the final on June over- with decedent’s estate became trial, days appellant’s ruling for a new and 120 motion which, exceptions, tender a bill of were allowed to judge, signed by him, day, presented the trial 120th complete filed, transcript not then Supreme it was filed in the office of clerk Court law, and no effort was made to the timе allowed within bond, filing appeal of time for an secure an extension with resulting filing transcript, of the time for extension petition uncompleted transcript allowed to to be file the being October, expiration after the of the time allowed appeals, taking granted, the facts did power grant an call for exercise of inherent of the court appeal lapse after the of the time allowed statute perfecting it.