50 W. Va. 570 | W. Va. | 1901
J. A. Wood and C. A. Wagner filed tbeir bill.of complaint in the circuit court of McDowell County against B. E. Wood alleging that in the year 1898, through the influence and efforts of plaintiff, Wagner, a- contract was entered into between defendant, B. E. Wood and George F. Lasher and others, trustees, for the purchase of certain timber on Huff creek in McDowell County
The defendant filed his demurrer and answer to said amended and supplemental bills referring to and making part of such answer his original answer, again denying the partnership or that the plaintiffs had any interest in the business carried on by respondent and averring that such lumber and merchandise as were brought by him to the Sandy Huff lumber yards and to the store after the bringing of this suit he kept separate from the lumber already on the yard's and from the merchandise in the store or proper invoice thereof.
Plaintiffs took the depositions of C. A. Wagner, A. E. Paddock, J. A. Wood, and T. A. Gaines and renewed their motion for the appointment of a receiver, and filed in support thereof the affidavit of C. D. Heasley, while the defendant filed in opposition to said motion the affidavits of J. H. Yost, William Ducoty, M. N. Offutt, G. L. Wood and the defendant E. E. Wood. And on the 21st day of March, 1901, the cause was heard upon the original and amended bills, the answer of the defendant E. E. Wood to the said bills, upon the said depositions and upon the motion uf plaintiffs for the appointment of a receiver, and upon the said several affidavits, when it was agreed by the respective parties that the answer of defendant, Wood, to the original bill should in addition to being treated as an answer be treated and considered as an affidavit on his behalf on said motion for the appointment of a receiver, “upon consideration whereof, the Court being of the opinion that the plaintiffs have shown prima facie, the existence of a partnership, between them and the defendant, E. E. Wood, doth sustain said motion for the appointment of a receiver and doth appoint Joseph Keys a receiver in this cause who shall take charge of all the moneys, books, property, aird. effects of the partnership lumber business on Sandy Huff and Huff Creeks in McDowell and Wyoming Counties referred to in the bills and heretofore run in the name’ of E. E. Wood, and shall operate the same in the name of Joseph Keys, Eeceiver, until the further order of this Court, collecting
Two questions are involved, the first is on the first assignment of error, that the original and amended bills are without the law and equity to support them. It is said by appellant that it is difficult to ascertain from the prayer of the original bill what relief is sought and that if the relief contemplated is for the specific performance of the contract, its allegations are too indefinite aifd uncertain to be entertained in a court of equity. The bill alleges, it is true in an indefinite manner the particulars of the partnership claimed, but they do allege sufficiently to show an agreed partnership between the three with a capital of ten thousand dollars; and allege "That they severally paid into the firm fund the following sums of money as their cash contributions to the capital thereof, to-wit: By J. A. Wood, three thousand one hundred and fifty dollars; by E. E. Wood, three thousand one hundred and fifty dollars; by C. A. Wagner, on October 3rd, 1898, five hundred dollars; by C. A. Wagner, 4th, Jaffiv. 1899, one thousand dollars;” and alleges that said partnership was agreed upon and went into actual operation; and pra}r that the status of the parties plaintiffs and defendant,'be ascertained and settled and that a partnership may be decreed as existing between them, and if found to exist as alleged the interest of each partner be ascertained and declared and an account be taken of all matters concerning the partnership including the assets and liabilities of the concern and the. individual accounts of the partners; that a decree be entered for the sale of the partnership, and the defendant required to discover the profits and earnings of the partnership. This can at least be construed into a prayer for the winding up of the partnership, and the further
The only other question remains as to the legality of the appointment of the receiver. Chapter 133, section 28, Code, provides that, “A court of equity may in any proper case pending therein, in which the property of a corporation, firm or person is involved, and there is danger of the loss or misappropriation of the same or a material part thereof, appoint a special receiver of such property or of the rents, issues and profits thereof, or both, who shall give bond,” etc. In Beach on Receivers, s. 588: "It is now settled that, upon an application for a receiver, there must be shown the due existence of a partnership, either by the admission by the defendant, or by other competent proof, as otherwise the sole property of the defendant might be taken from him, his business broken up, while in the end, it might appear that there was no right on the part of the plaintiff even to an account. The burden of proof rests of course upon the plaintiff. If the fact of the actual existence of the partnership be in doubt, and there is no allegation as to the insolvency of the defendant, or of his liability to respond in ease of a recovery against him, it seems that a receiver will be refused until a partnership is clearly established. And in such a case the court will direct the issue to be tried at law to determine the fact of partnership and the plaintiff’s interest, if any therein.” In Hobart v. Ballard, 31 Iowa 521, it is held: “To entitle one claiming to be a partner to the appointment of a receiver to wind up the affairs of the concern, it must appear that there was a completed partnership, at least so far as to entitle him to a participation in the profits. An agreement of partnership which has not been executed to this extent is not sufficient.” Also in Goulding v. Bain, 4 Sandford (N. Y.) 716: “In a suit for winding up a partnership by one claiming to be a partner but whose right as partner is wholly denied by defendant, and is not clearly established by the affidavits, the court will not grant a receiver nor an injunction; there being no proof that the fund is in danger.” Peacock v. Peacock, 16 Ves. 49 ; Fairburn v. Pearson, 2 Mac. & G. 144. In case at bar it is not pretended by plaintiffs that the defendant is
At the time of the hearing of the cause on the motion for a receiver, the pleadings stood upon the bill and amended and
There being no replication to defendant’s answer there was no issue on it, the replication before entered had been withdrawn-by the plaintiffs and not again entered and the answer was to be taken as true in every part including even facts which were not responsive to the bill. Bart. Chy. Pr. cited. And in said case of Jones v. Mason, just mentioned, it is held: “When a cause is set down for hearing by consent, upon bill and answer, the answer is to be taken to be true.”
I have examined the authorities cited and relied upon by ap-pellees touching the appointment of a receiver and find when taken altogether they are not inconsistent with the rules herein-before given concerning that matter. While several things are mentioned in the abstract for the appointment of a receiver, such as “denying the interest of a partner in the business;” “excluding a partner from participation in the management and profits of the business”; “denying him access to the books;” etc., which arc all matters for consideration of the Court, yet they must be considered in the light of the facts and circumstances of the particular cause under consideration. The decree complained of is reversed and the cause remanded.
Reversed.