27 Neb. 224 | Neb. | 1889
This cause was appealed from the decision of the district court of Fillmore county. Nathan H. Warren, Cyrus T. Warren, and Charles C. Warren, appellants, allege that they are partners doing business in Chicago, Illinois, under the firm name of N. H. Warren & Co., not incorporated; that they are grain commission merchants and own a number of grain elevators in this state, where they have persons buy grain for them upon such terms as they may agree upon; that on July 24, 1884, James Peabody and H. F. Googins commenced buying grain in Fairmont, Fillmore county, and shipping the same to them in Chicago, using an elevatoria Fairmont owned by plaintiffs. That plaintiffs furnished the money to buy the grain ; Googins lived in Chicago, and Peabody in Fairmont, and managed the business without having any money in it; and had no money anyhow, having formerly been a clerk or employed in the office of the Burlington & Missouri River R. R. Co. On September 30, 1885, the plaintiffs bought of Googins his interest in the business, and from that time at Fairmont it was conducted in the name of Jas. Peabody & Co., the firm being James Peabody and the plaintiffs; that they continued the business there till August 1, 1886, when it expired by limitation. It is alleged that Peabody never had any money in the business of the last partnership, but that the plaintiffs furnished all the money for the purchase of grain, for which purpose, exclusively, the partnership was formed; that Peabody would draw on them; from time to time, ostensibly for carrying on the legitimate business of the partnership, the purchase of grain. The plaintiffs in Chicago knew nothing about what Peabody was doing except
It is alleged that Peabody, not being satisfied with his limited and legitimate sphere of a country grain buyer and shipper, undertook to build railroads and water works, and to operate transportation companies with the money of plaintiffs, diverting it from the purchase of grain. That desiring a home and domicile for himself and Ella W. Peabody, his wife, he purchased, with the money of the plaintiffs, lots six, seven, and eight in the Park addition to Fairmont, and had the lots deeded to his wife. He then 'erected a valuable dwelling house and out-buildings, paying for the same in like manner, with money sent to buy grain, the amount of $5,000, without the knowledge or consent of plaintiffs.
It is also alleged that Harriet W. Williams is the mother of Ella W. Peabody, and that on August 2, 1886, Peabody and his wife, anticipating a suit by the plaintiffs, to set aside the deed to Ella W. Peabody for said lots, and have the title decreed to be in them, and for the purpose of defrauding the plaintiffs, and without any consideration from Harriet W. Williams, executed to her a mortgage on said lots for the sum of $2,000; that the mortgage was never delivered to her, and that she did not know of its execution, but that the same was at the instance of Peabody and his wife without the knowledge of the mortgagee. It is further alleged that Peabody and his wife are insolvent and execution proof.
The prayer is that the mortgage be declared null and void; that it be found that the lots, dwelling house, and improvements were purchased and built with the money of the plaintiffs, to whom the real property shall be conveyed by Peabody and wife, and for general relief, etc.
The defendants, James Peabody and Ella W. Peabody, answering, deny- every allegation of the plaintiffs except
The plaintiffs reply, denying all the allegations of the answer.
The defendant, Harriet W. Williams, answering, admits the partnership of the plaintiffs and the defendant as Jas. Peabody & Co. at Fairmont, Nebraska, in the grain business, but denies that the plaintiffs furnished or advanced any money to Peabody and Googins while they were doing business at Fairmont or while they were together, except as advances on the shipments of grain to them, and admits that on September 30, 1885, the plaintiffs purchased the interest of Googins in the business for $4, 500; that Googins
The plaintiffs reply to this answer, denying all the allegations of the defendant. These pleadings constitute the issue in the case.
There was a trial to the court, which found upon the proofs adduced that the allegations of the'plaintiffs’ petition were not sustained, and therefore found in favor of the defendants and against the plaintiffs, with a judgment that the plaintiffs take nothing by this action, that the cause be dismissed, and that the defendants go hence without day and recover their, costs.
To all of which the appellants except.
It appears from the bill of exceptions that on March 30, 1884, II. E. Googins, Alvah Perry, Sarah A. Scott, and James Peabody executed a contract to enter into copartnership under the firm name of Peabody, Perry, Scott & Company for the purpose of conducting a commercial business of such character, and at such place, as might from time to time be mutually agreed upon; that the copartners should contribute to the capital of the firm each $3,000, excepting James Peabody, who should contribute no money to the capital stock, but that his business experience aiid friendly relations with the Chicago, Burlington’& Quincy Railroad Company should be considered and accepted by the other partners as a full equivalent of the sum to be contributed; that each of the partners who should devote his time exclusively towards the conduct of the business of the firm should receive compensation not exceeding $100 per month, and except as stipulated, neither - party, except by the unanimous consent in writing of ... _ .should with
It appears that H. F. Googins paid in the $3,000; that Alvah Perry paid $1,000 and no more, and that Sarah A. Scott failed to pay any sum of her proportion; that Googins and Peabody, on August 24, 1884, entered into a. written agreement reciting the copartnership contract and the failure of Perry and Scott to comply with its terms, and declaring it to be their agreement that the firm be changed to Peabody & Company, and that the copartnership contract should remain in full force except as to Perry and Scott, who were excluded from all partnership therein. Upon the execution of this agreement the firm of Peabody & Co. commenced business at Fairmont. The plaintiffs, N. II. Warren & Co., were the owners of elevators for the reception and storage of grain at Fairmont and Geneva, which were used and occupied for that purpose by Peabody
A. They were to furnish the money to do the business, but in case they were blocked and could not get cars, we agreed they might draw for $3,000.
Q,. State whether Peabody understood the arrangement.
A. I think there was no definite arrangement made, except that he was to furnish the money to buy the grain and ship to us.
Q. Under what circumstances was he to draw upon the plaintiffs for grain purchased ?
A. He was to draw upon shipments of grain.
This firm of Peabody & Co., consisting of James Peabody and H. P. Googins, continued in business until about September 30, 1885, when the plaintiffs purchased the interest of Googins in the firm. Up to this time I am unable to discover that there were any trust relations existing between the defendant James Peabody and the plaintiffs.
It is claimed in the appellants' brief that in consideration of the use of the elevators, the firm of Peabody & Co. was to pay one-half of the profits to the firm of N. H. Warren & Co. I am unable to find this obligation in the record, but as the record is voluminous, and without an index, it may have been overlooked. But if such were the terms upon which Peabody & Co. accepted and used the elevators, that fact did not create the relationship of partners between the two firms, or the members of either. In this I but state the position of appellants in their brief. (See page 10.)
Exhibit E, introduced in evidence by the plaintiffs, is the only direct evidence showing the dates and amounts of money expended by James Peabody in the erection of the house and improvements involved in this controversy, by which it appears that checks to the amount of $800 were drawn in payment of labor, material, and furniture supposed to have gone into the building of the house and the improvement of the property. These items appear to have been selected from the account books of James Peabody & Co., which is alleged as the name assumed by the firm of Peabody & Co., assumed after N. H. Warren & Co. had bought the partnership interest of Googins. And it is by a considerable stretch of liberality in the application of evidence that the items of Exhibit E can be considered in the case at all.
By the terms of the original partnership of Peabody, Perry, Scott & Co.; Peabody, or such member of the firm as should devote his entire time to its business, was entitled
It is not my intention, in this opinion, to pass upon the general proposition argued by counsel for appellants “that where property held upon any trust to keep or use or to invest in a particular way is misapplied by the trustee and converted into different property, or is sold, and the proceeds are then invested, the property may be followed wherever it can be traced through its transformations, and will be subject when found in its new form to the rights of the original owner;” but only to sustain the findings and decision of the district court “that the allegations of the petition, in this respect, are not supported by the proof.” It is therefore deemed unnecessary to discuss either the evidence or the law especially applicable to the mortgage executed by the defendant Peabody and his wife to the defendant Williams, or any other issue arising in the case.
The decree of the district court is affirmed.
Decree affirmed.