21 Md. 30 | Md. | 1864
delivered the opinion of this Court:
In the case of Law vs. Ford, 2 Paige’s Ch. Rep., 310, Chancellor Walworth decided: "That whore either party
That was a case of an application for the appointment of a receiver, to dispose of the effects, and close up the concerns of a partnership, on a bill filed by one partner against another. The application was resisted on the ground that the partner who was in possession of the partnership books and effects, was willing to give security for the faithful application of the effects in payment of debts, &c.
A similar decision was made by the same Chancellor in Marten vs. Van Schaick & Bloodgood, 4 Paige’s Ch. Rep., 479. There a bill was filed by one or more partners for the purpose of dissolving a partnership, and to settle the partnership accounts and distribute the property and effects of the firm. The appointment of a receiver was opposed on the ground that “the principal value of the property consisted in the good will of their business, which it was alleged would be lost by the appointment of a receiver.”
The Supreme Court of Pennsylvania in the case of Sloan vs. Moore, 37 Penna. Rep., 217, recognized the same rules for the guide of a Chancery Court, in the appointment of a receiver of partnership effects, where a dissolution has taken place, or is intended. On page 222, the Court say: “Indeed it is difficult to see, how the necessity of a receiver can be avoided on the dissolution of a partnership, where the parties cannot agree as to the disposition of the joint effects,. for no one has a right to their possession and control sujierior to that of the other.”
The same principle was recognized by Chancellor Johnson, in the case of Walker, Adm’r, vs. House, 4 Md. Ch. Dec., 43. Where the learned Chancellor after citing the decision in Law vs. Ford, says: “This appears to be reasonable, because as a general rule each partner has an equal right to the possession of the partnership effects, and
The rules laid down in the case of Blondheim vs. Moore, 11 Md. Rep., 365, as governing Courts of Equity in Maryland, in appointing a receiver, are in our opinion inapplicable to sucb a case as ibis. That was a bill filed by a creditor, and the interference of the Court was invoked, to divest the possession of property from one having the legal estate, and to place it in the hands of a receiver, in such case it was held that fraud or imminent danger must be proved; here, the application is made by one having the legal estate, entitled to an equal right to the possession. In Speights vs. Peters, 9 Gill, 479, the Court of Appeals after slating “that against the legal title in the defendant, the Court would interfere with great reluctance, and only when the property was in danger of being materially injured or lost,” proceeds to say: “But in respect of a fund which is claimed, and is prima facie, the proceeds of a partnership, it is hut a provident exercise of equity power to place tire property under the care of the Court.”
These authorities, and the reasoning on which they rest, seem to us to be conclusive of the questions presented by this appeal.
The bill, answer and exhibits show, that the appellant and appellee were co-partners, equally in intererest in the property and business of the firm. By the articles, no time was limited for the continuance of the partnership; and it was therefore liable to be dissolved at the instance of either party. The bill alleges that it was dissolved by consent on the 31st day of December 1862; this is denied by tbe answer; but it manifestly appears, that a dissolution was then contemplated and imminent, and it is conceded that the filing of the bill operated a dissolution.
The proceedings also disclose a serious, and apparently irreconcilable disagreement between the parties, both as to the control and disposition of their properly and effects, and their respective claims and demands against each other.
It is not necessary in the decision of this appeal, nor would it be proper in the present state of the record, to express any opinion upon the- several charges of misconduct alleged by the parties against each other, or upon the state of their accounts, respectively, with the firm. These will more properly be considered and decided upon the final hearing of the cause.
A decree will be signed affirming the orders of the Circuit Court, with costs to the appellee, and remanding the cause’.
Orders affirmed and cause remanded.
