11 F.2d 9 | 9th Cir. | 1926
(after stating the facts as above.
Nearly a year after the record was filed in this court and during the term at which the ease was set for hearing, Hovland filed a petition for certiorari and for diminution of record based upon the ground that Smith was and is not the sole party in interest; that Phelps-Dodge Corporation and others are necessary parties and should be joined; and that certain papers used in a ease pending in the state court of Arizona and an interlocutory decree entered January 30, 1922, in the United States District Court for the District of Arizona in the present case and a stipulation on which the interlocutory decree was entered should be certified to this court. The petition Is signed by Hovland by Charles R. Morfoot. Mr. Morfoot does not appear as attorney of record in the appeal proper, and upon the hearing before us counsel of record for the appellant disclaimed any participa-.: tion in the matter of the petition.
Examination of the record on appeal shows that the contents of the transcript to be filed in this court for the purposes of Hovland’s appeal and of Smith’s cross-appeal were settled by stipulation of the parties through their respective counsel of record and by order of the District Court dated August 13, 1924, and subsequent stipulation and order dated October 8, 1924, and also that as far back as January, 1922, the principal facts upon which Hovland now relies as grounds for his petition were matters of record in the ease. Two terms of this court passed after this appeal was filed, yet no petition for certiorari was made as required by rule 18 of the court, and no satisfactory cause is shown for not having moved promptly in the premises. We therefore hold that the parties are bound by the record as stipulated by their counsel, and deny the petition for certiorari and diminution of record, and overrule the motion to join additional parties.
To enter upon an extended statement of the evidence upon the merits would greatly lengthen this opinion, and is unnecessary. The findings of fact, having been approved by the District Cpurt after a review of the evidence, are to be taken as presumptively correct, and unless obvious error has intervened in applying some principle of law or some important mistake has occurred in weighing the evidence, the decree will not be reversed. Furrer v. Ferris, 12 S. Ct. 821, 145 U. S. 132, 36 L. Ed. 649; Road Imp. Dist. v. Wilkerson (C. C. A.) 5 F.(2d) 416. We shall refer briefly to the more important features.
Hovland’s contentions are that the master and the court erred: (1) In allowing Smith a credit of $30,000 on account of the Arizona King group of mining claims; and (2) in allowing him a credit of $139,497.66 or any other sum as the value of certain options and commissions; (3) in finding that the partnership was dissolved as of March 1, 1912; (4) in finding that on March 1, 1912, Hovland had 7,850 shares of Live Oak stock and that certain stocks were purchased by Hovland for himself and not for the partnership.
Smith by cross-appeal predicates error (1) upon a charge to him of interest amounting to more than $22,000 on part of a sum received by him for the sale of the Rough Rider claims; (2) upon the decision of the court disaffirming the finding of the master, allowing a debit to Hovland of $1,305,041,
It appeared that in 1904 the company which owned the Arizona King group of claims failed to do the necessary assessment work and in January, 1905, two men, strangers to this litigation, located the claims. Thereupon Smith and the two locators agreed that Smith was to assure payment for doing necessary work and was to have a half interest in the claims. After the firm of Hovland & Smith was formed, the partnership bought some interests in the group, and eventually the claims were patented to the two strangers and Smith, and Smith conveyed all of his interest in the Arizona King group to the Union Mines Company, the entire capital- stock of which was owned by Hovland & Smith. In 1912 the Union Mines Company sold its interest in the group for $100,000 which sum was applied to the payment of partnership debts. It appeared, however, that payment to the men who did the assessment work for 1904 was made by a partnership credit entered on the partnership books (which were kept in Smith’s name) in March, 1906. The master did not overlook the bearing that the book entry might have as tending to support Hovland’s testimony to the effect that before the partnership of Hovland & Smith was created Hovland told Smith he would join him in the purchase of the Arizona King group, but considering the fact that when the strangers made their location there was no partnership of Hovland & Smith, and that prior to March, 1905, the locators dealt with Smith alone, it was concluded that entry for doing the assessment work made upon the books was in reality a payment of Smith’s individual obligation incurred in 1904 and should have been charged against Smith on the partnership books. It was further found that when the partnership was formed it became owner of a half interest in the group, title to Vhieh, however, was then involved in litigation. The master estimated the value of Smith’s interest in the group when he turned it over to the partnership at $40,000, but because of the litigation over the titles he reduced the value to $30,000. We think there should be a modification of this credit, and that Smith’s valuation of $40,000 should be accepted without reduction of the twenty-five per cent. This seems equitable in the light of the fact that the litigation failed to impair the titles.
The credit allowed Smith as the value of certain options and equities in certain properties rests upon evidence that Smith individually owned the options and equities before the partnership was formed, that the rights were very valuable, that he relinquished them in favor of the partnership and for its financial benefit. One of the principal matters concerning this credit was the partnership promotion and development of-the.Warren Realty & Development Company in which in 1905 the firm spent approximately $600,000 in buying certain properties, which in 1917 were sold for over $2,000,000. But back in 1903 many of the properties which went into the Warren Company were held by Smith under options to purchase. By such options, if availed of, Smith would have received about $430,000 in cash, and the partnership, by promotion of the Warren Company, was enabled to buy the properties less the commissions Smith was entitled to. The master thought it just to give Smith credits against the partnership as of March 1, 1905. Whether the value of Smith’s rights in the options was worth the sum for which he was given credit was vigorously questioned, but there was ample evidence to support the finding, and it will not be disturbed.
With respect to certain shares and purchases of stock other than live Oak included in an account submitted by Hovland to Smith in February, 1912, Hovland took the position that the stocks were bought as partnership property, whereas Smith contended that the purchases were Hovland’s individual matters and therefore should be kept out of the partnership accounts. Much conflicting testimony was introduced. Smith testified that he never had possession of any of the shares involved, and the master, after sifting the mass of evidence, both oral and documentary, concluded that Hovland treated the stocks as his own and that they belonged to him. An attentive reading of the testimony leads to the view that the letters and acts of the partners were consistent with that conclusion, and that the finding was correct.
The master, however, was right in treating as partnership stocks Parea Oil shares, which at Hovland’s request were taken from his personal safety box to be sent to Hovland at Duluth, for it is clear that the partnership was interested in Parea Oil and that shares in that company were issued to each partner. Hovland was therefore correct in claiming credit for the value of such shares, and Smith was right in not disputing the credit.
Smith’s contention that the master erred in charging interest against him on the unexpended balance of $100,000 he received on account of the sale of the Rough Rider group does not appeal to us. The sale was made for partnership purposes, and Smith received the money on April 7, 1917, five years after dissolution. The fact that Smith brought the action soon after he paid out certain sums in settlement of partnership debts, and that he expressed a willingness to account, ought not to relieve him of the duty to pay interest for moneys retained by him, which money belonged to the partnership. His testimony that he applied the money to debts due to him personally from the partnership, though true, does not put the case outside of the rule that where a partner after dissolution has retained the proceeds of a sale of firm property for more than a reasonable time he may be equitably charged with interest in an account between himself and his copartner. . Rowley on Partnership, § 601.
The last of the important items pertains to the Live Oak or Inspiration stock, which was partnership property, but which was sold by Hovland’s creditor-pledgee to pay his personal debts — all as referred to in the statement of the findings of the master. We agree with the view expressed in the clear and comprehensive memorandum opinion filed by Judge Dooling, that upon dissolution either partner had the right to sell any of the partnership assets either to pay partnership debts or for closing the partnership, but that if either retained the proceeds of sale he should be charged interest thereon. Therefore Hovland, having a right to sell the Inspiration stock at the time he did sell it, should have used the proceeds to pay firm debts. The fact that he did not do so did not injure the partnership or his copartner, provided the sale was for the fair and reasonable value. The test is: Was the liability that he incurred greater than that fixed by the law of partnership ? Upon this point Judge Dooling well said: “If, therefore, defendant, upon the sale of the Live Oak stock, or its later equivalent the Inspiration stock, had applied the proceeds to the payment of the partnership debts, plaintiff would not now be in a position to complain of such sale. The legal injury to the partnership does not lie in the sale of the stock, which as a partner defendant had the right to make, but in the withholding of the proceeds for which he was bound to account. The rule is stated in a line by Rowley (section 601) as follows: ‘If a partner after dissolution retains the proceeds from the sale of firm property for more than a reasonable time he may be chargeable with interest.’ ”
It is argued by Smith that the value of the Inspiration stock as found by the court was too little, but there is ample evidence that the sum realized was the fair market value at the time of the sale, March, 1914.
We are of the opinion that an accounting, made in accordance with the decree of the lower court when modified in respect to the credit for Smith’s interest in the Arizona Bang group, will equitably adjust the accounts between the parties.
The decree will therefore be modified to conform to this opinion, and as so modified will stand affirmed without costs to either party.
Modified and affirmed.
