100 Neb. 107 | Neb. | 1916
From a decree of the district court for Dawson county, ordering a partition of the stock and fixtures of a hardware and implement business, in the city of Gothenburg, and stating an account of the interests of the parties therein, • defendant appeals, and plaintiff presents a cross-appeal.
February 25, 1913, plaintiff and defendant entered into a contract whereby plaintiff sold to defendant a tract uf land in Phillips county, Colorado, the consideration being $6,250 and the assumption by defendant of a mortgage of $3,750. The consideration of $6,250 was to be paid by the transfer to plaintiff of defendant’s stock of hardware and implements at Gothenburg. It was known at the time that the stock would invoice more than $6,250, and it was provided that defendant should retain possession of the stock until it wms reduced to $6,250. Plaintiff was to conduct the business. Actual expenses were to be paid out of the receipts, but were not to be charged against defendant’s share of the stock. It was also agreed that plaintiff should pay rent upon the building occupied by thu
The principal contention of defendant is that the petition does not state a cause of action. The argument is that the contract entered into February 25, 1913, constituted a' chattel mortgage and not a partnership, and that partition of the personal property could not be had. From an inspection of the contract and a consideration of the object sought, it is evident that the parties did not intend to enter into the relationship of mortgagor and mortgagee. It is not now necessary to decide what is the correct name for the situation created by the contract. The relation is rather one of a common ownership, in disproportionate shares, of a mass of unlike and unequal property, each party having a right of possession of the whole. The stock originally invoiced $15,169.90; $11,479.89 at the commence
Barr v. Lamaster, 48 Neb. 114, and Phillips v. Dorris, 56 Neb. 293, relied upon by defendant, relate to partition of real estate, and do not hold that a court of equity cannot, under any circumstances, decree partition of personal property.
Upon the cross-appeal plaintiff contends that the trial court erroneously charged plaintiff with items and credited defendant with other items. A review of the interests of the parties will be less complicated by a consideration of the matter from defendant’s standpoint. In the first invoice in March, 1913, the fixtures and stock were appraised
Plaintiff complains because the trial court taxed the costs of the receivership proceedings against him. The receiver was appointed on his application, but was later discharged because he failed to furnish bond. The costs were properly taxed against him.
Both parties are to blame for the situation in which they now find themselves. We are unable to say which is the more in fault. That they cannot carry out their contract of February 25, 1913, is clear. It is therefore the duty of the court to settle the controversy. We concur in the holding of the district court that this is a proper case for partition, but the decree is modified in the following particulars :
The interest of plaintiff in the property in controversy, at the time of the commencement of this suit, is found to
As herein modified, the judgment of the district court is affirmed.
Affirmed as modified.