52 Tenn. 65 | Tenn. | 1871
delivered the opinion of the Court.
At the January Term, 1867, of the Chancery Court of Dyersburg, a decree was made in the case of E. G. Stallings, Adm’r v. John W. Price, by which the Clerk and Master was ordered to sell the steam saw and and grist mill, as well as the cotton gin and carding machine and their appurtances, which had belonged to the firm of Sadbury & Price. He reported to the August Term, 1867, that after advertising as directed, he sold the steam saw and grist mill, also the cotton gin and carding machine, on the 30th of March, 1867, when the same was struck off to Saunders & Aycock for $3,000, for which they executed their notes.
Before the report of sale was confirmed, Saunders & Aycock filed their petition to be relieved of their bid, and to have their notes cancelled and given up. They state in their petition, that shortly after their bids for the mills and machinery, the same were accidently consumed by fire. They state also, that the Court had no right to sell the property, because the allegations of the bill and proof showed no partnership in the property ordered to be sold, and because the property ordered to be sold was part of the real estate of J. W. Sadbury, deceased, and descended to his heirs, who were not made parties.
The answer to the petition admits the burning of the mills alleged, except that it is charged that the
Upon the hearing of the matters of the petition, the Chancellor declared the sale of the property null, and ordered the notes of petitioners to be cancelled. From this decree the defendants in the petition appealed to this Court.
It becomes necessary, at the threshold of our investigation of the questions arising in the case, to ascertain the true situation of the mill property and machinery prior to and at the death of J. W. Sadbury. The answer of Price, the partner of Sadbury at his death, gives the following statement on the subject. He says, that Sadbury and himself did enter into partnership about August, 1865, in the steam saw and grist mills, cotton gin and carding machine, mentioned in
John H. Moss, who was appointed receiver, upon the filing of the original bill, proves that the buildings were substantial, and were all built by Sadbury, Aycock & Price, in 1865. The mill-house, constituting the grist, wool, gin, and lint cotton rooms, was a frame building set upon blocks, two stories high, 30 feet wide and 50 feet long.
The buildings were put upon the land claimed by by J. W. Sadbury — put there by J. W. Sadbury, in part, and part by John W. Price, and completed by Sadbury & Price. The machinery was put there for manufacturing purposes by Sadbury & Aycock as partners. The improvements were carried on by the late firm of Sadbury & Price as a firm.
From this evidence it appears, that when Sad-bury & Price formed their partnership, in August 1865, most of the improvements had already been made by Sadbury & Aycock, who had previously been partners in the mills. It was intended by Sadbury & Price, that the 300 acres of land, already contracted for by Sadbury, should be paid for with the earnings of the partnership, and thus should become partnership property. But this understanding seems not to have been carried out, although $1,700 of their joint earnings were used in paying for it. Price, in his answer, abandons any claim to the land under this parol agreement, and claims to be compensated, for his money used, out of Sadbury’s estate.
It appears that all the machinery added to the concern, after Price became a partner, was paid for out of the profits made by the mills. It could all be removed from the buildings without injury, and the propelling power was a portable steam-engine.
It appears that the partnership was understood by Price, one of the partners, to extend only to the machinery, and not to embrace either the buildings or
In the case before us, the purchasers voluntarily took possession of the mills, contracted for a lease of the real estate from the widow, and had been running the establishment several weeks when the fire occurred. The proof is that Saunders, one of the purchasers, who alone is insisting on being released, was notified and warned that there was danger in running the machinery without remedying certain defects which were pointed out to him; yet, that he disregarded the warnings, and continued to run the machinery until the fire occurred. The evidence tends strongly to show that the fire was the result of negligence and recklessness on his part. The facts of this case strongly support the wisdom of the rule which throws the loss on the vendee in such cases.
The decree of the Chancellor is reversed, and the cause remanded to be proceeded in as herein indicated. The costs of this Court will be paid by Saunders, and the court below as the Chancellor may direct.