| Md. | Jun 15, 1851
delivered the opinion of this court.
This appeal involves the propriety of appointing a receiver under the circumstances charged in the complainant’s bill, and the refusal of the court upon motion of the defendant, (the present appellant) to discharge the receiver so appointed upon the answer and testimony subsequently filed in the cause.
It is difficult to approach this issue between the parties, without encroaching upon matters which are more appropriately the subject of consideration in the further progress of the cause. The accounts between them, are a part of the record before us, but of course they come under review here only incidentally as a basis for the relief sought in the appointment of a receiver. We desire carefully to abstain from the intimation of any opinion, which involves the correctness of these char
It is true, as it has been strenuously urged, that it must be a strong case, that will justify this ultimate resort of a court of equity. It is a high power never exercised, where it is likely to produce irreparable injustice or injury to private rights, or where there exists any other safe or expedient remedy. Still in a variety of instances, especially in partnership transactions where the parties after dissolution of their connection, cannot agree upon the adjustment, and the property or funds in dispute are in the hands of one partner alone, each having an equal right to the control of the property, cases must necessarily arise, where the interest of both can only be properly secured by the intervention and appointment of a receiver.
Is the case presented here one that warrants this interposition of a receiver between the parties? It originated in a joint adventure, in which the parties engaged as owners of a barque, to carry freight from Baltimore to San Francisco in California. The answer distinctly admits the joint ownership of the vessel, and that a portion of the cargo was also on joint concern of the parties, and the accounts filed in the cause as exhibits, present them as partners by the specific character of the adventure itself. The partnership was dissolved by the sale of the vessel at San Francisco-, and the bill is now filed to obtain an adjustment of the accounts between them as a proper subject for the action of a court of equity.
The bill charges that a large amount of the proceeds of the adventure, was remitted by the appellant from San Francisco, and was placed in the hands of Adams §- Company, and others of the city of Baltimore, where it remained at the time of filing the bill, and affirms the belief that if these proceeds come to the hands of the appellant, they will be lost to the concern. The answer admits that funds were so remitted, but that they belong to the appellant, and denies that if in his
Are these then the funds of this partnership, or rather the proceeds of this adventure? The complainant asserts that they are, the respondent claims them as his own private funds. But it can scarcely be doubted from the complexion of the whole case presented, that if so, they can only be his as the results of this adventure, and as such a portion of the proceeds. A final adjustment between the parties of all accounts relating to the concern, can only determine the rightful appropriation, and in the meantime, under the existing relation between the parties, to discharge the receiver and put these funds at the disposition of theappellant, would, we think, create just apprehension of danger to the rights of the other party.
We find, so far as the record discloses the means of the appellant, that he was limited in his resources at the commencement of the adventure. He paid but two hundred dollars on account of his one-fourth interest in the barque, and executed a note and moitgage to secure the balance. He was then in debt for the actual property, the proceeds of which are now in controversy. There is no proof or pretence that he owned or possessed any other funds or property, than what he derived from his part of the adventure. In one of his letters to the appellee, he represents himself as poor, and commends his family in his absence to the care and assistance of the appellee. Thus entirely without meeans of his own at the time of his departure, the first impression naturally suggests, that what he brought home with him or remitted from San Francisco, was altogether the proceeds of this joint adventure. We do not mean to say it will so result on the final investigation. For admitting the correctness of his accounts, the balance resulting would be adequate to account for the possession of funds on his private account. But the legality and justice of the claims in this account, to a very large amount, denied by the appellee, are the very points in controvery, and if not ultimately maintained, to that extent, remain the funds of the partnership. Indeed until the final decision between the parties,
• Now, has the appellant committed any breach of contractor duty as a co-partner, which justifies the interference of this court? Without intimating any such positive violation of duty, as would anticipate the ulterior judgment of the court upon this charge of the bill, it is at least manifest, that in the transactions at San Francisco, he acted precipitately and under great excitement, which, however, we do not mean to say was without provocation. But, by his own admission, he assented to it, if he did not coerce a sacrifice of the vessel, which he himself asserts he could have sold at Panam.a for three times the sum obtained at San Francisco. He bought the vessel himself, and the agent of the complainant, in his testimony, charges him expressly with precipitating the sale before the cargo was discharged. The fair character of the purchase, and the price paid, seems to be fully sustained by other testimony. Yet he sold the vessel soon after for thrice the amount. How far the fiduciary tie between him and his partner should have restrained him from engaging in the purchase, or whether he was right in entering into competition with other purchasers, under the circumstances, is not now to be determined. Whether that purchase is to be considered for his exclusive benefit, or whether he is accountable, upon the resale, at the advanced price, must abide the ultimate decision of the case. At all events, the complainant claims now to stand in that relation to the disposition of the property. If this should be established, it is difficult to conceive, as the answer insists, that the appellant could make any remittance home on his own account, unless from speculations in the common fund, as the bill charges.
■ The appellant, it is true, claims the fund remitted, to have ..been his own private property, but there is no explanation of
It is further a part of the charge against the appellant, that while he agreed that die services of each to the concern was to be reciprocal and without charge, he has detained out of the joint fund large sums claimed for primage, wages, and collecting freights, which he is not entitled to withhold from the assets. And this agreement is supported by evidence of his own declarations to that effect. That a change of the relations between them, after his departure, and the subsequent events at San Francisco, might not, in equity, modify or release the arrangement, we do not mean to say. But so long as the matter remains in dispute, all these sums for the purposes of the controversy, must be considered as part of the joint assets, and so far neutralise the averment of the appellant, that they are his private property, until he establishes it by the future decision of the court, when it comes properly before them. The fund being then already in the hands of a receiver, and the whole of the accounts between the parties, being under the control and investigation of the court, we think there was sufficient shown to induce the court to retain the receiver until their final determination; and we can see no immediate mischief or irreparable injury to the appellant from this course.
It is assumed by the appellant, that the court, as preliminary to the appointment of a receiver, must also further be satisfied, that the property is in imminent peril. This, however, is not always a necessary condition to the action of the court. Against the legal title, or a strong presumptive title in the defendant, the court would interfere with great reluctance; and only where the property was in danger of being materially injured or lost. But in respect of a fund which is claimed, and is prima fade the proceeds of a partnership, it is but a provident exercise of equity power to place the property under the care of the court. It has been laid down by Lord Eldon, that “ if one partner, in the ordinary course of trade, seeks to exclude another from taking that part in the concern which he is entitled to take, the
Such is the prima facie case here presented by the bill, and not sufficiently repelled, at least until the defendant makes out by proof a clear right to the credits which his accounts claim for him. The proof, in part, indicates, (we do not say conclusively,) that it was agreed between the parties, that a portion of the charges here insisted upon, are excluded by the terms of the partnership. The appellant may still be able to maintain them at a final hearing. We pass no opinion upon their validity; we have no right to do so in this stage of the proceeding. But we decline to rescind the order, believing the fund to be in proper custody for the present, without intending the slightest imputation or suspicion of the integrity of the defendant, which is not necessarily impeached by this decision of the court. We believe the case to be fully covered by (he law that applies to it, and the order of Baltimore county court in the premises is affirmed.
ORDER AFFIRMED.