6 F. 693 | U.S. Circuit Court for the District of Southern New York | 1880
In February, 1871, Theodore EL Vetterlein and Bernard T. Vetterlein were adjudicated bankrupts in this ' court, and in April, 1871, the defendant, Demás Barnes, was duly appointed their assignee in bankruptcy and qualified as such. The bankrupts traded under the firm name of Th. II. Vetterlein & Sons, in New York, and under the firm name of Vetterlein & Co. in Philadelphia. The original hill in this case was filed in November, 1879. Both plaintiff and defendant are citizens of the state of New York. The bill alleges that the plaintiff was a partner in two other firms preceding the firm of Th. H. Vetterlein & Sons of New York. The first of these was a firm alleged to consist of Theodore H. Vetter-lein, one of the bankrupts, B. Vetterlein, Henry Thurman, and the plaintiff, doing business under the firm name of Th. EL & B. Vetterlein & Co., which was dissolved April 30, 1865, in which the plaintiff’s interest is claimed to have been, though not so alleged in the bill, from about the year 1862 to April 30, 1864, one-sixth part of Theodore H. Vetterlein’s share of the profits, which was 37-|- per cent., and from April
The bill further alleges that each succeeding firm received the remaining assets of the prior firm as liquidators; that all of each prior firms were solvent upon their dissolution; that there was, as to each of them, something still duo to the plaintiff for his share of the profits; that funds or other specific property -which constituted part of the assets of each of said prior firms came to the hands of the bankrupts, and that such, assets were not entirely liquidated at the time of the bankruptcy; that the bankrupts held the same as liquidators only, and that some part of said assets came to the hands of
The defendant’s answer, besides containing a denial of nearly all the averments of the bill, sets up as a defence the two-years’ limitation contained in Rev. St. § 5057.
■ The proofs show that the plaintiff was a partner in the first firm of Vetterlein & Co. from January 1,1866, till its dissolution July 6,1869, and also in the second firm of Vetterlein & Co. till its dissolution December 31, 1869, and in the first firm of Th. H. Vetterlein & Sons from its formation May 1, 1865, to its dissolution December 31, 1867, his interest in those firms being the share of the profits of the business stated in the bill. The proof is not sufficient, in my judgment, to show that he was a partner in the firm of Th. H. & B. Vetterlein & Co. The proofs, on the contrary, show very clearly, I think, that he was not a member of that firm, but that, by an agreement between him and his father, Theodore H. Vetterlein, his father promised to give him one-sixth part of his, Theodore H. Vetterlein’s, share of the profits from sometime in 1862 down to April 30,1865. Not only is there no entry whatever in the books of the firm of H. & B. Vetter-lein & Co. showing' that the plaintiff had any interest therein as a partner, but it appears that the next succeeding firm, Theodore H. Vetterlein & Sons, No. 1, of which the plaintiff was a partner, became the liquidators of the former firm, and received and distributed, in money and other property, a large part of the assets of the late firm of Th. TL & B. Vetterlein & Co. among the partners, exclusive of the plaintiff, and had accounts with that firm and some of its members, which are entirely inconsistent with any right or claim of the plaintiff to be considered a partner in that house. Nor is the proof sufficient to show that the plaintiff was a member of Vetter-
On the twenty-seventh of May, 1873, the plaintiff caused the following letter to be sent to the defendant by his agent: “1 am instructed by Mr. Theodore J. Vetterlein to require of you an accounting and settlement of his interest in the firms of Vetterlein & Co. and Th. H. Vetterlein & Sons, as existing prior to his withdrawal, the assets of which firms came into your hands as assignee in bankruptcy. In default of your so doing, I am directed to institute legal proceedings to procure the same.” On the second day of June, 1873, the plaintiff sent the defendant a letter by his agent, as follows: “Please oblige bo by an acknowledgment of my communication of the twenty-seventh ultimo. If you will state to me in vour answer the substance of what you asked of me person
Notwithstanding the demand for an account and definite action contained in these letters, and the refusal to postpone the matter as proposed by the defendant, the plaintiff took no-other steps to enforce his alleged rights till about the first day of June, 1878, when, by his same agent, he wrote the defend
“Demás Barnes, Ksq., to T. J. Vetterlein, Dr. 1870.
December 21 — To amount as per statement hereto annexed, §19,187 91 “ To cash balance on books of Yetterlein & Co., 31 67
“ To cash account, services rendered Th. II. Vet-terlein & Sons in 1868 and 1869, as per agreement, in the purchase oí tobacco, - 5,000 00
“ To collection oí amounts charged to me by profit and loss, as per Journal 10, pp. 119-120, ------- 15,916 31
I claim interest on the above items, 1, 2, and 3, from December 21, 1870, and on item 4 from the date oí the collection
of the several matters herein contained. -
§40,135 99 ”
The statement referred to in the first item of this account consists of two successive accounts, the first being an account headed “Theodore J. Vetterlein in account with Th. H. & B. Vetterlein & Co.,” in which the plaintiff is credited with §17,-701.87, being one-sixth of §106,211.27, claimed to bo the profits of Theodore II. Vetterlein up to April 30, 1864, and also with $6,062.78, one-eighth of the alleged profits of the firm from May 1, 1864, to April 30, 1865, and he is charged with §838.03, the amount standing to plaintiff’s debit on the books of the firm. The balance of this first account, $22,-926.62, to tho credit of the plaintiff, is carried forward into the second account, which is entitled “Theo. J. Vetterlein in
The assets of these several prior firms, so far as they had been kept separate and distinct, are admitted by the bill to have come to these bankrupts, and to have been by them, as liquidators, partly administered when they became bankrupt. The right of the plaintiff to assume their administration and liquidation, if he had such right, then at once accrued to the plaintiff against the bankrupts upon their failure, and before the petition in bankruptcy was filed. The letters of the plaintiff’s agent in 1873, above recited, show very plainly that the plaintiff then understood and knew that the defendant had taken possession of all such assets, and was claiming to administer them as belonging to the estate of the bankrupts, and was reducing them to money. By the letter of twenty-seventh of May, 1873, he demanded an account and settlement as to his interest in the firms of Th. H. Yetterlein & Sons and Yetterlein & Co., and threatened a suit if his demand was not complied with. There can be no doubt from the evidence that as to all assets of these prior firms of which the assignee took possession, and of which he made any collections, his claim was adverse to that of this plaintiff, as a solvent partner seeking to recover them for himself, in order to liquidate which is the claim now made, although the claim made by the letters was not a claim for the possession of the assets in order to liquidate, but for an account and payment, out of the assets so collected, of the plaintiff’s alleged interest or balance of unpaid profits in these several firms. It is noticeable, however, that in these letters of 1873 there is no reference to any claim of the plaintiff as partner in the firm of Th. H. & B. Vetterlein & Co., which now constitutes the larger part of his present claim. Not until the letter of June 1, 1878, was any claim made of an interest in that firm, and not until the filing of the amended bill in this suit — December, 1879 — was this claim of a right to liquidate the assets of these prior firms made.
Whatever may have been the right of the plaintiff as a
There is, however, perhaps enough in the bill to support
As already stated, the plaintiff was a member of the firm of Th. H. Yetterlein & Sons. He is presumed to have known
The claim made in the bill as to the plaintiff’s interest in the assets, which were of the firm of Vetterlein & Co., of Philadelphia, is that the plaintiff is, by agreement, entitled to the entire proceeds of collections from assets charged in the books of the firm to profit and loss, and 15 per cent, of the items, till his entire claim is paid. The bill makes no discrimination between the two firms of that name which preceded the bankrupt firm of the same name, and treats them as one continuing firm down to December 31, 1869.
Therefore, because the plaintiff has no case upon the merits, and because his claim, if any, is barred by the statute, the bill must be dismissed, with costs.