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Owen v. Cohen 252

OWEN 252

v. 252

COHEN. 253

L. A. 17917. 253

Supreme Court of California. 253

Dec. 5, 1941. 253

In Bank. 253

CURTIS, Justice. 253

This is an action in equity brought for the dissolution of a partnership and for the sale of the partnership assets in connection with the settlement of its affairs. 253

On or about January 2, 1940, plaintiff and defendant entered into an oral agreement whereby they contracted to become partners in the operation of a bowling-alley business in Burbank, California. The parties did not expressly fix any definite period of time for the duration of this undertaking. For the purpose of securing necessary equipment, plaintiff advanced the sum of $6.986.63 to the partnership, with the understanding that the amount so contributed was to be considered a loan to the partnership and was to be repaid to the plaintiff out of the prospective profits of the business as soon as it could reasonably do so. Defendant owned an undivided one-half interest in a bowling-alley *149 establishment in Burbank and the partnership purchased the other one-half interest for the sum of $2,500, of which amount $1,250 was paid in cash and the balance of $1,250 was evidenced by the partners' promissory note. As part of this transaction plaintiff assumed payment of the sum of $4,650 owing on a trust deed on the property, title to which he took in his own name. The partnership also purchased alleys and other requisite furnishings, and as part payment therefor the two partners executed promissory notes in the total sum of $4,596, secured by a chattel mortgage on said equipment. 253

Plaintiff and defendant opened their partnership bowling-alley on March 15, 1940. From the day of its beginning until the institution of the present action on June 28, 1940--a period of approximately three and one-half months-- the business was operated at a profit. During this time the partners paid off a part of the capital indebtedness and each took a salary of $50 per week. However, shortly after the business was begun differences arose between the partners with regard to the management of the partnership affairs and their respective rights and duties under their agreement. This continuing lack of harmonious relationship between the partners had its effect on the monthly gross receipts, which, though still substantial, were steadily declining, and at the date of the filing of this action much of the partnership indebtedness, including the aforementioned loan made by plaintiff, remained unpaid. On July 5, 1940, in response to plaintiff's complaint and upon order to show cause, the court appointed a receiver to take charge of the partnership business, which ever since has been under his control and management. 253

As the result of the trial of this action the court found that the partners 'did not agree upon any definite term for the continuance of said partnership, nor upon any particular undertaking to be accomplished; that the said partnership was a partnership at will'. From this finding the court concluded that plaintiff was entitled to a dissolution under section 2425, subdivision (1)(b), of the Civil Code. The court further found that the parties disagreed 'on practically all matters essential to the operation of the partnership business and upon matters of policy in connection therewith'; that the defendant had 'committed breaches of the partnership agreement' and had 'so conducted himself in affairs relating *150 to the business' that it was 'not reasonably practicable to carry on the partnership business with him'. From this finding it was concluded that the partnership was dissoluble by court decree in accordance with the provisions of section 2426 of the Civil Code. 253

Pursuant to these findings of fact and conclusions of law, the trial court rendered a decree adjudging the partnership dissolved and ordering the assets sold by the receiver. It was further decreed that the proceeds of such sale and of the receiver's operation of the business on hand upon the consummation of such sale be applied, after allowance for the receiver's fees and expenses, to payment of the partnership debts, including the amount of $6,986.63 loaned by plaintiff to the business; that one-half of the remainder of the proceeds be paid to plaintiff, together with the additional sum of $100.17 for his costs; and that defendant be given what was left. It was also provided that in bidding at the sale of the partnership assets, either party might use, in lieu of cash, credit to the extent of any sums which would accrue to him out of the proceeds; and that if the money derived from such sale proved to be insufficient to pay plaintiff's costs, a personal judgment to the extent of the deficiency was to be rendered against defendant. It is from this decree that the defendant has appealed. 254

The principal question presented for consideration is whether or not the evidence warrants a decree of dissolution of **715 the partnership. Defendant's objection to the finding that the partnership was one at will is fully justified by the uncontradicted evidence that the partners at the inception of their undertaking agreed that all obligations incurred by the partnership, including the money advanced by plaintiff, were to be paid out of the profits of the business. While the term of the partnership was not expressly fixed, it must be presumed from this agreement that the parties intended the relation should continue until the obligations were liquidated in the manner mutually contemplated. These circumstances negative the existence of a partnership at will, dissoluble at the election of a member thereof (Mervyn Investment Company v. Biber, 184 Cal. 637, 194 P. 1037), and demonstrate conclusively that the assailed finding is without support in the record. However, our determination of this issue does not necessitate a reversal of the decree, for other facts found by the court relating to defendant's breach of *151 the partnership agreement amply justify the decision rendered. In such event the law is settled beyond question that the finding which does not conform to the evidence becomes immaterial and may be disregarded. 254

It is not necessary to enter into a detailed statement of the quarrel between the partners. Whether the disharmony was the result of a difference in disposition or to other causes, the effect is the same. Most of the acts of which complaint is made are individually trivial, but from the aggregate the court found, and the record so indicates, that the breach between the partners was due in large measure to defendant's persistent endeavors to become the dominating figure of the enterprise and to humiliate plaintiff before the employees and customers of the bowling-alley. In this connection plaintiff testified that defendant declined to do any substantial amount of the work required for the successful operation of the business; that defendant informed him that he (defendant) 'had not worked yet in 47 years and did not intend to start now'; and that he (plaintiff) 'should do whatever manual work he could do on the premises, but that he (defendant) would act as manager and wear the dignity'. The record also discloses that during the preparation and before the opening of the bowling-alley establishment, defendant told a mutual acquaintance that plaintiff would not be there very long. Corroborative of this evidence is plaintiff's testimony that a few weeks prior to the filing of this action, when he had concluded that he and defendant could not reconcile their differences, he asked defendant to make an offer either to buy out his (plaintiff's) interest in the business or to sell to him (plaintiff); that defendant replied, in effect, that when he was ready to sell to plaintiff, he would set the price himself and it would cost plaintiff plenty to get rid of him. In addition, there is considerable evidence demonstrating that the partners disagreed on matters of policy relating to the operation of the business. One cause of dispute in this connection was defendant's desire to open a gambling room on the second floor of the bowling-alley property and plaintiff's opposition to such move. Another was defendant's dissatisfaction with the agreed salary of $50 per week fixed for each partner to take from the business and his desire to withdraw additional amounts therefrom. This constant dissension over money affairs culminated in defendant's*152 appropriation of small sums from the partnership's funds to his own use without plaintiff's knowledge, approval or consent. In justification of his conduct defendant claimed that on each occasion he set aside a like amount for plaintiff. This extenuating circumstance, however, does not serve to eliminate from the record the fact that monetary matters were a continual source of argument between the partners. 254

Defendant urges that the evidence shows only petty discord between the partners, and he advances, as applicable here, the general rule that trifling and minor differences and grievances which involve no permanent mischief will not authorize a court to decree a dissolution of a partnership. 20 R.C.L. 958, par. 182. However, as indicated by the same section in Ruling Case Law and previous sections, courts of equity may order the dissolution of a partnership where there are quarrels and disagreements of such a nature and to such extent that all confidence and cooperation between the parties has been destroyed or where one of the parties by his misbehavior materially hinders a proper conduct of the partnership business. It is not only large affairs which produce trouble. The continuance of overbearing and vexatious petty treatment of one partner by another frequently is more serious in its disruptive character than would be larger differences which would be discussed and, **716 settled. For the purpose of demonstrating his own preeminence in the business one partner cannot constantly minimize and deprecate the importance of the other without undermining the basic status upon which a successful partnership rests. In our opinion the court in the instant case was warranted in finding from the evidence that there was very bitter, antagonistic feeling between the parties; that under the arrangement made by the parties for the handling of the partnership business, the duties of these parties required cooperation, coordination and harmony; and that under the existent conditions the parties were incapable of carrying on the business to their mutual advantage. As the court concluded, plaintiff has made out a cause for judicial dissolution of the partnership under section 2426 of the Civil Code: 255

'(1) On application by or for a partner the court shall decree a dissolution whenever: * * * 255

'(c) A partner has been guilty of such conduct as tends to affect prejudicially the carrying on of the business, 255

*153 '(d) A partner wilfully or persistently commits a breach of the partnership agreement, or otherwise so conducts himself in matters relating to the partnership business that it is not resonably practicable to carry on the business in partnership with him, * * * 255

'(f) Other circumstances render a dissolution equitable.' 255

Defendant next questions the propriety of that portion of the decree which provides for the payment of plaintiff's loan to the business, to-wit, the sum of $6,986.63, from the proceeds realized upon the sale of the partnership assets. It is his contention that since the partners agreed that the amount so contributed was to be repaid from the profits of the business, which the evidence established to be a profitable enterprise, the court's order directing the discharge of this partnership obligation in a manner violative of the express understanding of the parties is unjustifiable. Mervyn Investment Company v. Biber, supra. That a party to a contract may absolutely limit his right to receive a sum of money from a specified source is indisputable. Lynch v. Keystone Consolidated Mining Company, 163 Cal.690, 123 P.968; Martin v. Martin, 5 Cal.App.2d 591, 43 P.2d 314. But defendant's argument based upon this settled precept is of no avail here, for his abovedescribed conduct, creative of a condition of disharmony in derogation of the best interests of the partnership, constituted ground for the court's decree of dissolution and its order directing the sale of the assets for the purpose of forwarding the settlement of the partnership affairs. Defendant, whose persistence in the commission of acts provocative of dissension and disagreement between the partners made it impossible for them to carry on the partnership business, is in no position now to insist on its continued operation. These circumstances not only render the assailed provision of the decree invulnerable to defendant's objection, but also establish its complete accord with established principles of equity jurisprudence. 256

Defendant also attacks the provision in the decree permitting the plaintiff, in bidding at the receiver's sale of the partnership assets, to use, 'in lieu of cash, credit to the extent of any sums which will accrue to him out of the proceeds.' He contends that such stipulation is erroneous on its face because it recognizes that the amount of money which 'will accrue' to plaintiff cannot be ascertained until after *154 the sale and yet it authorizes plaintiff to use in connection with his bid credit measured by such an indefinite quantity. This factor of uncertainty, he claims, will operate to plaintiff's advantage by stifling competitive bidding and therefore will react unfavorably on the outcome of the sale. Defendant's argument is not only unsound in view of the precise wording employed by the court in reference to the conduct of the sale, but it likewise fails to present in its entirety that portion of the decree of which the clause in question is but a part. Exactly the same provision concerning the use of credit was made for the benefit of defendant, so that in this respect the parties were placed on an equal footing. Moreover, the extension of credit has no bearing upon the bidding as such, for plaintiff and defendant, as other bidders at the sale, still must state their offers for the purchase of the partnership assets in terms definite as to amount; therefore, the competitive spirit customarily present on such occasions will in nowise be disturbed. It is manifest from the court's language that the single circumstance which will give operative force to the applicable credit provision is the prevalence of plaintiff or defendant over other participants in the bidding. In such event the receiver, as part of the mechanics **717 of computing the division of the proceeds, must, if so requested, take into account the sums of money which 'will accrue' to the party bidding in the property and credit such amount against the cash figure constituting the pevailing bid. To pay money to the receiver merely to have it returned would be an idle ceremony, as the court recognized in its decree. In the case of an ordinary sale under execution the practice of the sheriff's taking the creditor's receipt instead of cash was approved in Mitchell v. Alpha Hardware & Supply Company, 7 Cal.App.2d 52, at page 61, 45 P.2d 442, at page 446, wherein it was said: 'Thus, * * * if the sheriff accepts the receipt, and the judgment is satisfied, in substance and effect it amounts to the same thing as though actual cash had been passed to and fro, from purchaser to sheriff, and sheriff to purchaser.' 256

The fact that at an execution sale the amount owing to the judgment creditor is known before the sale, while in the present situation the credit to which plaintiff or defendant will be entitled cannot be ascertained until after the receiver's sale is immaterial, for in neither case does certainty as to *155 such allowance affect the conduct of the bidding. In each instance the credit is definitely fixed at the time of its consideration, which is after the consummation of the sale. Nor is it of consequence that it is obligatory upon the receiver here, in the event that either plaintiff or defendant prevails in the bidding at the sale of the partnership assets, to approve such party's tender of credit owing him, in lieu of cash, whereas the acceptance of a like offer from a successful judgment creditor at an execution sale is wholly volitional on the part of the sheriff. The procedure prescribed by the court here, after a consideration of all the facts presented in this equity proceeding, was a matter purely within its discretion, and no abuse thereof appears from the record. In accord with this analysis, it is our opinion that the questioned portion of the decree is proper in every respect. 257

Defendant finally contends that the court erred in its allowance of costs to plaintiff. Provision was made in the decree for plaintiff's recovery of his costs out of the proceeds of the sale of the partnership assets and also for a personal judgment against defendant for the payment of this item to the extent that it is not satisfied upon distribution of the proceeds according to the priority specified by the court. Defendant's objection is untenable, for under section 1032, subdivision (c), of the Code of Civil Procedure the assessment of costs in a proceeding in equity is a matter whose disposition rests 'in the discretion' of the trial court, and the action of such tribunal will not be disturbed where, as here, there is no showing of an abuse of discretion. 257

The disposition of this appeal on the merits makes it unnecessary to pass upon the incidental supersedeas proceeding instituted herein, and the order to show cause issued in connection therewith is therefore discharged. 257

The judgment is affirmed. 257

GIBSON, C. J., SHENK, J., EDMONDS, J., HOUSER, J., CARTER, J., and TRAYNOR, J., concurred. 257



Page v. Page 257

George B. PAGE, Appellant, 257

v. 257

H. B. PAGE, Respondent. 258

L. A. 25644. 258

Supreme Court of California, In Bank. 258

Jan. 27, 1961. 258

TRAYNOR, Justice. 258

Plaintiff and defendant are partners in a linen supply business in Santa Maria, California. Plaintiff appeals from a judgment declaring the partnership to be for a term rather than at will. 258

The partners entered into an oral partnership agreement in 1949. Within the first two years each partner contributed approximately $43,000 for the purchase of land, machinery, and linen needed to begin the business. From 1949 to 1957 *194 the enterprise was unprofitable, losing approximately $62,000. The partnership's major creditor is a corporation, wholly owned by plaintiff, that supplies the linen and machinery necessary for the day-to-day operation of the business. This corporation holds a $47,000 demand note of the partnership. The partnership operations began to improve in 1958. The partnership earned $3,824.41 in that year and $2,282.30 in the first three months of 1959. Despite this improvement plaintiff wishes to terminate the partnership. 258

The Uniform Partnership Act provides that a partnership may be dissolved 'By the express will of any partner when no definite term or particular undertaking is specified.' Corp.Code, s 15031, subd. (1)(b). The trial court found that the partnership is for a term, namely, 'such reasonable time as is necessary to enable said partnership to repay from partnership profits, indebtedness incurred for the purchase of land, buildings, laundry and delivery equipment and linen for the operation of such business. * * *' Plaintiff correctly contends that this finding is without support in the evidence. 258

Defendant testified that the terms of the partnership were to be similar to former partnerships of plaintiff and defendant, and that the understanding of these partnerships was that 'we went into partnership to start the business and let the business operation pay for itself, put in so much money, and let the business pay itself out.' There was also testimony that one of the former partnership agreements provided in ***645 **43 writing that the profits were to be retained until all obligations were paid. 258

Upon cross-examination defendant admitted that the former partnership in which the earnings were to be retained until the obligations were repaid was substantially different from the present partnership. The former partnership was a limited partnership and provided for a definite term of five years and a partnership at will thereafter. Defendant insists, however, that the method of operation of the former partnership showed an understanding that all obligations were to be repaid from profits. He nevertheless concedes that there was no understanding as to the term of the present partnership in the event of losses. He was asked: '(W)as there any discussion with reference to the continuation of the business in the event of losses?' He replied, 'Not that I can remember.' He was then asked, 'Did you have any understanding with Mr. Page, your brother, the plaintiff in this action, as to how the obligations were to be paid if there were losses?' He *195 replied, 'Not that I can remember. I can't remember discussing that at all. We never figured on losing, I guess.' 258

Viewing this evidence most favorably for defendant, it proves only that the partners expected to meet current expenses from current income and to recoup their investment if the business were successful. 259

Defendant contends that such an expectation is sufficient to create a partnership for a term under the rule of Owen v. Cohen, 19 Cal.2d 147, 150, 119 P.2d 713. In that case we held that when a partner advances a sum of money to a partnership with the understanding that the amount contributed was to be a loan to the partnership and was to be repaid as soon as feasible from the prospective profits of the business, the partnership is for the term reasonably required to repay the loan. It is true that Owen v. Cohen, supra, and other cases hold that partners may impliedly agree to continue in business until a certain sum of money is earned (Mervyn Investment Co. v. Biber, 184 Cal. 637, 641-642, 194 P. 1037), or one or more partners recoup their investments (Vangel v. Vangel, 116 Cal.App.2d 615, 625, 254 P.2d 919), or until certain debts are paid (Owen v. Cohen, supra, 19 Cal.2d at page 150, 119 P.2d at page 714), or until certain property could be disposed of on favorable terms (Shannon v. Hudson, 161 Cal.App.2d 44, 48, 325 P.2d 1022). In each of these cases, however, the implied agreement found support in the evidence. 259

In Owen v. Cohen, supra, the partners borrowed substantial amounts of money to launch the enterprise and there was an understanding that the loans would be repaid from partnership profits. In Vangel v. Vangel, supra, one partner loaned his co-partner money to invest in the partnership with the understanding that the money would be repaid from partnership profits. In Mervyn Investment Co. v. Biber, supra, one partner contributed all the capital, the other contributed his services, and it was understood that upon the repayment of the contributed capital from partnership profits the partner who contributed his services would receive a one-third interest in the partnership assets. In each of these cases the court properly held that the partners impliedly promised to continue the partnership for a term reasonably required to allow the partnership to earn sufficient money to accomplish the understood objective. In Shannon v. Hudson, supra, the parties entered into a joint venture to build and operate a motel until it could be sold upon favorable and mutually satisfactory *196 terms, and the court held that the joint venture was for a reasonable term sufficient to accomplish the purpose of the joint venture. 259

In the instant case, however, defendant failed to prove any facts from which an agreement to continue the partnership for a term may be implied. The understanding to which defendant testified was no more than a common hope that the partnership earnings would pay for all the necessary expenses. Such a hope does not establish even by implication a 'definite term or particular undertaking' as required ***646 **44 by section 15031, subdivision (1)(b) of the Corporations Code. All partnerships are ordinarily entered into with the hope that they will be profitable, but that alone does not make them all partnerships for a term and obligate the partners to continue in the partnerships until all of the losses over a period of many years have been recovered. 259

Defendant contends that plaintiff is acting in bad faith and is attempting to use his superior financial position to appropriate the now profitable business of the partnership. Defendant has invested $43,000 in the firm, and owing to the long period of losses his interest in the partnership assets is very small. The fact that plaintiff's wholly-owned corporation holds a $47,000 demand note of the partnership may make it difficult to sell the business as a going concern. Defendant fears that upon dissolution he will receive very little and that plaintiff, who is the managing partner and knows how to conduct the operations of the partnership, will receive a business that has become very profitable because of the establishment of Vandenberg Air Force Base in its vicinity. Defendant charges that plaintiff has been content to share the losses but now that the business has become profitable he wishes to keep all the gains. 259

There is no showing in the record of bad faith or that the improved profit situation is more than temporary. In any event these contentions are irrelevant to the issue whether the partnership is for a term or at will. Since, however, this action is for a declaratory judgment and will be the basis for future action by the parties, it is appropriate to point out that defendant is amply protected by the fiduciary duties of co-partners. 260

Even though the Uniform Partnership Act provides that a partnership at will may be dissolved by the express will of any partner (Corp.Code, s 15031, subd. (1) (b)), this power, like any other power held by a fiduciary, must be exercised in good faith. 260

*197 We have often stated that 'partners are trustees for each other, and in all proceedings connected with the conduct of the partnership every partner is bound to act in the highest good faith to his copartner, and may not obtain any advantage over him in the partnership affairs by the slightest misrepresentation, concealment, threat, or adverse pressure of any kind.' Llewelyn v. Levi, 157 Cal. 31, 37, 106 P. 219, 221; Richards v. Fraser, 122 Cal. 456, 460, 55 P. 246; Yeomans v. Lysfjord, 162 Cal.App.2d 357, 361- 362, 327 P.2d 957; cf. MacIsaac v. Pozzo, 26 Cal.2d 809, 813, 161 P.2d 449; Corp.Code, s 15021. Although Civil Code s 2411, [FN1] embodying the foregoing language, was repealed upon the adoption of the Uniform Partnership Act, it was not intended by the adoption of that act to diminish the fiduciary duties between partners. See MacIsaac v. Pozzo, 26 Cal.2d 809, 813, 161 P.2d 449; Yeomans v. Lysfjord, 162 Cal.App.2d 357, 361-362, 327 P.2d 957. 260

FN1. Now Corporations Code, s 15017. 260

A partner at will is not bound to remain in a partnership, regardless of whether the business is profitable or unprofitable. A partner may not, however, by use of adverse pressure 'freeze out' a co-partner and appropriate the business to his own use. A partner may not dissolve a partnership to gain the benefits of the business for himself, unless he fully compensates his co- partner for his share of the prospective business opportunity. In this regard his fiduciary duties are at least as great as those of a shareholder of a corporation. 260

In the case of In re Security Finance Co., 49 Cal.2d 370, 376-377, 317 P.2d 1, 5 we stated that although shareholders representing 50 per cent of the voting power have a right under Corporations Code, s 4600 to dissolve a corporation, they may not exercise such right in order 'to defraud the other shareholders (citation), to 'freeze out' minority shareholders (citation), or to sell the assets of the dissolved corporation at an inadequate price (citation).' 260

***647 Likewise in the instant case, plaintiff has the power to dissolve the partnership by express notice to defendant. If, however, it is proved that plaintiff acted in bad faith and violated his fiduciary duties by attempting to appropriate to his own use the new prosperity of the partnership without adequate compensation to his co-partner, the dissolution would be wrongful and the plaintiff would be liable as provided by subdivision (2)(a) of Corporations Code, s 15038 (rights of partners upon wrongful dissolution) for violation of the *198 implied agreement not to exclude defendant wrongfully from the partnership business opportunity. 260

The judgment is reversed. 261

GIBSON, C. J., McCOMB, PETERS, WHITE, and DOOLING, JJ., and WOOD, J. pre tem., concur. 261

Long v. Lopez 261

National Biscuit Company, Inc. v. Stroud 269

NATIONAL BISCUIT COMPANY, Inc. 269

v. 269

C. N. STROUD and Earl Freeman, trading as Stroud's Food Center. 269

No. 100 269

Supreme Court of North Carolina. 269

Jan. 28, 1959 269

*468 **693 The case was heard in the Superior Court upon the following agreed statement of facts: 269

On 13 September 1956 the National Biscuit Company had a Justice of the Peace to issue summons against C. N. Stroud and Earl Freeman, a partnership trading as Stroud's Food Center, for the nonpayment of $171.04 for goods sold and delivered. After a hearing the Justice of the Peace rendered judgment for plaintiff against both defendants for $171.04 with interest and costs. Stroud appealed to the Superior Court: Freeman did not. 269

In March 1953 C. N. Stroud and Earl Freeman entered into a general partnership to sell groceries under the name of Stroud's Food Center. Thereafter plaintiff sold bread regularly to the partnership. Several months prior to February 1956 the defendant Stroud advised an agent of plaintiff that he personally would not be responsible for any additional bread sold by plaintiff to Stroud's Food Center. From 6 February 1956 to 25 February 1956 plaintiff through this same agent, at the request of the defendant Freeman, sold and delivered bread in the amount of $171.04 to Stroud's Food Center. Stroud and Freeman by agreement dissolved the partnership at the close of business on 25 February 1956, and notice of such dissolution was published in a newspaper in Carteret County 6-27 March 1956. 269

The relevant parts of the dissolution agreement are these: All partnership assets, except an automobile truck, an electric adding machine, a rotisserie, which were assigned to defendant Freeman, and except funds necessary to pay the employees for their work the week before the dissolution and necessary to pay for certain supplies purchased the week of dissolution, were assigned to Stroud. Freeman assumed the outstanding liens against the truck. Paragraph five of the dissolution agreement is as follows: 'From and after the aforesaid February 25, 1956, Stroud will be responsible for the liquidation of the partnership assets and the discharge of partnership liabilities without demand upon Freeman for any contribution in the discharge of said obligations.' The dissolution agreement was made in reliance on Freeman's representations that the indebtedness of the partnership was about $7,800 and its accounts receivable were about $8,000. The accounts receivable at the close of business actually *469 amounted to $4,897.41. 269

Stroud has paid all of the partnership obligations amounting to $12,014.45, except the amount of $171.04 claimed by plaintiff. To pay such obligations Stroud exhausted all the partnership assets he could reduce to money amounting to $4,307.08, of which $2,028.64 was derived from accounts receivable and $2,278.44 from a sale of merchandise and fixtures, and used over $7,700 of his personal money. Stroud has left of the partnership assets only uncollected accounts in the sum of $2,868.77, practically all of which are considered uncollectible. 270

Stroud has not attempted to rescind the dissolution agreement, and has tendered plaintiff, and still tenders it, one-half of the $171.04 claimed by it. 270

**694 From a judgment that plaintiff recover from the defendants $171.04 with interest and costs, Stroud appeals to the Supreme Court. 270

PARKER, Justice. 270

C. N. Stroud and Earl Freeman entered into a general partnership to sell groceries under the firm name of Stroud's Food Center. There is nothing in the agreed statement of facts to indicate or suggest that Freeman's power and authority as a general partner were in any way restricted or limited by the articles of partnership in respect to the ordinary and legitimate business of the partnership. Certainly, the purchase and sale of bread were ordinary and legitimate business of Stroud's Food Center during its continuance as a going concern. 270

Several months prior to February 1956 Stroud advised plaintiff that he personally would not be responsible for any additional bread sold by plaintiff to Stroud's Food Center. After such notice to plaintiff, it from 6 February 1956 to 25 February 1956, at the request of Freeman, sold and delivered bread in the amount of $171.04 to Stroud's Food Center. 270

In Johnson v. Bernheim, 76 N.C. 139, this Court said: 'A and B are general partners to do some given business; the partnership is, by operation of law, a power to each to bind the partnership in any manner legitimate to the business. If one partner go to a third person to buy an article on time for the partnership, the other partner cannot prevent it by writing to the third person not to sell to him on time; or, if one party attempt to buy for cash, the other has no right to require that it shall be on time. And what is true in regard *470 to buying is true in regard to selling. What either partner does with a third person is binding on the partnership. It is otherwise where the partnership is not general, but is upon special terms, as that purchases and sales must be with and for cash. There the power to each is special, in regard to all dealings with third persons at least who have notice of the terms.' There is contrary authority. 68 C.J.S. Partnership s 143, pp. 578- 579. However, this text of C.J.S. does not mention the effect of the provisions of the Uniform Partnership Act. 270

The General Assembly of North Carolina in 1941 enacted a Uniform Partnership Act, which became effective 15 March 1941. G.S. Ch. 59, Partnership, Art. 2. 270

G.S. s 59-39 is entitled 'Partner Agent of Partnership as to Partnership Business', and subsection (1) reads: 'Every partner is an agent of the partnership for the purpose of its business, and the act of every partner, including the execution in the partnership name of any instrument, for apparently carrying on in the usual way the business of the partnership of which he is a member binds the partnership, unless the partner so acting has in fact no authority to act for the partnership in the particular matter, and the person with whom he is dealing has knowledge of the fact that he has no such authority.' G.S. s 59-39(4) states: 'No act of a partner in contravention of a restriction on authority shall bind the partnership to persons having knowledge of the restriction.' 270

G.S. s 59-45 provides that 'all partners are jointly and severally liable for the acts and obligations of the partnership.' 271

G.S. s 59-48 is captioned 'Rules Determining Rights and Duties of Partners.' Subsection (e) thereof reads: 'All partners have equal rights in the management and conduct of the partnership business.' Subsection (h) hereof is as follows: 'Any difference arising as to ordinary matters connected with the partnership business may be decided by a majority of the partners; but no act in contravention of any agreement between the partners may be done rightfully without the consent of all the partners.' 271

**695 Freeman as a general partner with Stroud, with no restrictions on his authority to act within the scope of the partnership business so far as the agreed statement of facts shows, had under the Uniform Partnership Act 'equal rights in the management and conduct of the partnership business.' Under G.S. s 59-48(h) Stroud, his co-partner, could not restrict the power and authority of Freeman to buy bread for the partnership as a going concern, for such a purchase was an 'ordinary matter connected with the partnership business,' for the purpose of its business and within its scope, because in the very nature of things Stroud was not, and could not be, a majority of the *471 partners. Therefore, Freeman's purchases of bread from plaintiff for Stroud's Food Center as a going concern bound the partnership and his co- partner Stroud. The quoted provisions of our Uniform Partnership Act, in respect to the particular facts here, are in accord with the principle of law stated in Johnson v. Bernheim, supra; same case 86 N.C. 339. 271

In Crane on Partnership, 2d Ed., p. 277, it is said: 'In cases of an even division of the partners as to whether or not an act within the scope of the business should be done, of which disagreement a third person has knowledge, it seems that logically no restriction can be placed upon the power to act. The partnership being a going concern, activities within the scope of the business should not be limited, save by the expressed will of the majority deciding a disputed question; half of the members are not a majority.' 271

Sladen, Fakes & Co. v. Lance, 151 N.C. 492, 66 S.E. 449, is distinguishable. That was a case where the terms of the partnership imposed special restrictions on the power of the partner who made the contract. 271

At the close of business on 25 February 1956 Stroud and Freeman by agreement dissolved the partnership. By their dissolution agreement all of the partnership assets, including cash on hand, bank deposits and all accounts receivable, with a few exceptions, were assigned to Stroud, who bound himself by such written dissolution agreement to liquidate the firm's assets and discharge its liabilities. It would seem a fair inference from the agreed statement of facts that the partnership got the benefit of the bread sold and delivered by plaintiff to Stroud's Food Center, at Freeman's request, from 6 February 1956 to 25 February 1956. See Blackstone Guano Co. v. Ball, 201 N.C. 534, 160 S.E. 769. But whether it did or not, Freeman's acts, as stated above, bound the partnership and Stroud. 271

The judgment of the court below is 272

Affirmed. 272

RODMAN, J., dissents. 272

Meinhard v. Salmon 272

MEINHARD 272

v. 272

SALMON et al. 272

Court of Appeals of New York. 272

Dec. 31, 1928. 272

*461 CARDOZO, C. J. 272

On April 10, 1902, Louisa M. Gerry leased to the defendant Walter J. Salmon the premises known as the Hotel Bristol at the northwest corner of Forty-Second street and Fifth avenue in the city of New York. The lease was for a term of 20 years, commencing May 1, 1902, and ending April 30, 1922. The lessee undertook to **546 change the hotel building for use as shops and offices at a cost of $200,000. Alterations and additions were to be accretions to the land. 272

Salmon, while in course of treaty with the lessor as to the execution of the lease, was in course of treaty with *462 Meinhard, the plaintiff, for the necessary funds. The result was a joint venture with terms embodied in a writing. Meinhard was to pay to Salmon half of the moneys requisite to reconstruct, alter, manage, and operate the property. Salmon was to pay to Meinhard 40 per cent. of the net profits for the first five years of the lease and 50 per cent. for the years thereafter. If there were losses, each party was to bear them equally. Salmon, however, was to have sole power to 'manage, lease, underlet and operate' the building. There were to be certain pre- emptive rights for each in the contingency of death. 272

The were coadventures, subject to fiduciary duties akin to those of partners. King v. Barnes, 109 N. Y. 267, 16 N. E. 332. As to this we are all agreed. The heavier weight of duty rested, however, upon Salmon. He was a coadventurer with Meinhard, but he was manager as well. During the early years of the enterprise, the building, reconstructed, was operated at a loss. If the relation had then ended, Meinhard as well as Salmon would have carried a heavy burden. Later the profits became large with the result that for each of the investors there came a rich return. For each the venture had its phases of fair weather and of foul. The two were in it jointly, for better or for worse. 272

When the lease was near its end, Elbridge T. Gerry had become the owner of the reversion. He owned much other property in the neighborhood, one lot adjoining the Bristol building on Fifth avenue and four lots on Forty-Second street. He had a plan to lease the entire tract for a long term to some one who would destroy the buildings then existing and put up another in their place. In the latter part of 1921, he submitted such a project to several capitalists and dealers. He was unable to carry it through with any of them. Then, in January, 1922, with less than four months of the lease to run, he approached the defendant Salmon. The result was a new lease to the Midpoint Realty Company, which is owned and controlled by Salmon, a lease covering the *463 whole tract, and involving a huge outlay. The term is to be 20 years, but successive covenants for renewal will extend it to a maximum of 80 years at the will of either party. The existing buildings may remain unchanged for seven years. They are then to be torn down, and a new building to cost $3,000,000 is to be placed upon the site. The rental, which under the Bristol lease was only $55,000, is to be from $350,000 to $475,000 for the properties so combined. Salmon personally guaranteed the performance by the lessee of the covenants of the new lease until such time as the new building had been completed and fully paid for. 273

The lease between Gerry and the Midpoint Realty Company was signed and delivered on January 25, 1922. Salmon had not told Meinhard anything about it. Whatever his motive may have been, he had kept the negotiations to himself. Meinhard was not informed even of the bare existence of a project. The first that he knew of it was in February, when the lease was an accomplished fact. He then made demand on the defendants that the lease be held in trust as an asset of the venture, making offer upon the trial to share the personal obligations incidental to the guaranty. The demand was followed by refusal, and later by this suit. A referee gave judgment for the plaintiff, limiting the plaintiff's interest in the lease, however, to 25 per cent. The limitation was on the theory that the plaintiff's equity was to be restricted to one-half of so much of the value of the lease as was contributed or represented by the occupation of the Bristol site. Upon cross-appeals to the Appellate Division, the judgment was modified so as to enlarge the equitable interest to one-half of the whole lease. With this enlargement of plaintiff's interest, there went, of course, a corresponding enlargement of his attendant obligations. The case is now here on an appeal by the defendants. 273

Joint adventurers, like copartners, owe to one another, while the enterprise continues, the duty of the finest *464 loyalty. Many forms of conduct permissible in a workaday world for those acting at arm's length, are forbidden to those bound by fiduciary ties. A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior. As to this there has developed a tradition that is unbending and inveterate. Uncompromising rigidity has been the attitude of courts of equity when petitioned to undermine the rule of undivided loyalty by the 'disintegrating erosion' of particular exceptions. Wendt v. Fischer, 243 N. Y. 439, 444, 154 N. E. 303. Only thus has the level of conduct for fiduciaries been kept at a level higher than that trodden by the crowd. It will not consciously be lowered by any judgment of this court. 273

The owner of the reversion, Mr. Gerry, had vainly striven to find a tenant who would favor his ambitious scheme of demolition and **547 construction. Beffled in the search, he turned to the defendant Salmon in possession of the Bristol, the keystone of the project. He figured to himself beyond a doubt that the man in possession would prove a likely customer. To the eye of an observer, Salmon held the lease as owner in his own right, for himself and no one else. In fact he held it as a fiduciary, for himself and another, sharers in a common venture. If this fact had been proclaimed, if the lease by its terms had run in favor of a partnership, Mr. Gerry, we may fairly assume, would have laid before the partners, and not merely before one of them, his plan of reconstruction. The pre-emptive privilege, or, better, the pre-emptive opportunity, that was thus an incident of the enterprise, Salmon appropriate to himself in secrecy and silence. He might have warned Meinhard that the plan had been submitted, and that either would be free to compete for the award. If he had done this, we do not need to say whether he would have been under a duty, if successful in the competition, to hold the lease so acquired for the *465 benefit of a venture than about to end, and thus prolong by indirection its responsibilities and duties. The trouble about his conduct is that he excluded his coadventurer from any chance to compete, from any chance to enjoy the opportunity for benefit that had come to him alone by virtue of his agency. This chance, if nothing more, he was under a duty to concede. The price of its denial is an extension of the trust at the option and for the benefit of the one whom he excluded. 273



No answer is it to say that the chance would have been of little value even if seasonably offered. Such a calculus of probabilities is beyond the science of the chancery. Salmon, the real estate operator, might have been preferred to Meinhard, the woolen merchant. On the other hand, Meinhard might have offered better terms, or reinforced his offer by alliance with the wealth of others. Perhaps he might even have persuaded the lessor to renew the Bristol lease alone, postponing for a time, in return for higher rentals, the improvement of adjoining lots. We know that even under the lease as made the time for the enlargement of the building was delayed for seven years. All these opportunities were cut away from him through another's intervention. He knew that Salmon was the manager. As the time drew near for the expiration of the lease, he would naturally assume from silence, if from nothing else, that the lessor was willing to extend it for a term of years, or at least to let it stand as a lease from year to year. Not impossibly the lessor would have done so, whatever his protestations of unwillingness, if Salmon had not given assent to a project more attractive. At all events, notice of termination, even if not necessary, might seem, not unreasonably, to be something to be looked for, if the business was over the another tenant was to enter. In the absence of such notice, the matter of an extension was one that would naturally be attended to by the manager of the enterprise, and not neglected altogether. At least, there was nothing in the situation to give warning to any one that while the lease was still in being, there *466 had come to the manager an offer of extension which he had locked within his breast to be utilized by himself alone. The very fact that Salmon was in control with exclusive powers of direction charged him the more obviously with the duty of disclosure, since only through disclosure could opportunity be equalized. If he might cut off renewal by a purchase for his own benefit when four months were to pass before the lease would have an end, he might do so with equal right while there remained as many years. Cf. Mitchell v. Read, 61 N. Y. 123, 127, 19 Am. Rep. 252. He might steal a march on his comrade under cover of the darkness, and then hold the captured ground. Loyalty and comradeship are not so easily abjured. 274

Little profit will come from a dissection of the precedents. None precisely similar is cited in the briefs of counsel. What is similar in many, or so it seems to us, is the animating principle. Authority is, of course, abundant that one partner may not appropriate to his own use a renewal of a lease, though its term is to begin at the expiration of the partnership. Mitchell v. Read, 61 N. Y. 123, 19 Am. Rep. 252; Id., 84 N. Y. 556. The lease at hand with its many changes is not strictly a renewal. Even so, the standard of loyalty for those in trust relations is without the fixed divisions of a graduated scale. There is indeed a dictum in one of our decisions that a partner, though he may not renew a lease, may purchase the reversion if he acts openly and fairly. Anderson v. Lemon, 8 N. Y. 236; cf. 2 White & Tudor, Leading Cases in Equity (9th Ed.) p. 642; Bevan v. Webb, [1905] 1 Ch. 620; Griffith v. Owen, [1907] 1 Ch. 195, 204, 205. It is a dictum, and no more, for on the ground that he had acted slyly he was charged as a trustee. The holding is thus in favor of the conclusion that a purchase as well as a lease will succumb to the infection of secrecy and silence. Against the dictum in that case, moreover, may be set the opinion of Dwight, C., in Mitchell v. Read, where there is a dictum to the contrary. 61 N. Y. 123, at page 143, 19 Am. Rep. 252. *467 To say that a partner is free without restriction to buy in the reversion of the property where **548 the business is conducted is to say in effect that he may strip the good will of its chief element of value, since good will is largely dependent upon continuity of possession. Matter of Brown's Will, 242 N. Y. 1, 7, 150 N. E. 581, 44 A. L. R. 510. Equity refuses to confine within the bounds of classified transactions its precept of a loyalty that is undivided and unselfish. Certain at least it is that a 'man obtaining his locus standi, and his opportunity for making such arrangements, by the position he occupies as a partner, is bound by his obligation to his copartners in such dealings not to separate his interest from theirs, but, if he acquires any benefit, to communicate it to them.' Cassels v. Stewart, 6 App. Cas. 64, 73. Certain it is also that there may be no abuse of special opportunities growing out of a special trust as manager or agent. Matter of Biss, [1903] 2 Ch. 40; Clegg v. Edmondson, 8 D. M. & G. 787, 807. If conflicting inferences are possible as to abuse or opportunity, the trier of the facts must make the choice between them. There can be no revision in this court unless the choice is clearly wrong. It is no answer for the fiduciary to say 'that he was not bound to risk his money as he did, or to go into the enterprise at all.' Beatty v. Guggenheim Exploration Co., 225 N. Y. 380, 385, 122 N. E. 378, 380. 'He might have kept out of it altogether, but if he went in, he could not withhold from his employer the benefit of the bargain.' Beatty v. Guggenheim Exploration Co., supra. A constructive trust is, then, the remedial device through which preference of self is made subordinate to loyalty to others. Beatty v. Guggenheim Exploration Co., supra. Many and varied are its phases and occasions. Selwyn & Co. v. Waller, 212 N. Y. 507, 512, 106 N. E. 321, L. R. A. 1915B, 160; Robinson v. Jewett, 116 N. Y. 40, 22 N. E. 224; cf. Tournier v. National Provincial and Union Bank of England, [1924] 1 K. B. 461. 274

We have no thought to hold that Salmon was guilty of a conscious purpose to defraud. Very likely he assumed *468 in all good faith that with the approaching end of the venture he might ignore his coadventurer and take the extension for himself. He had given to the enterprise time and labor as well as money. He had made it a success. Meinhard, who had given money, but neither time nor labor, had already been richly paid. There might seem to be something grasping in his insistence upon more. Such recriminations are not unusual when coadventurers fall out. They are not without their force if conduct is to be judged by the common standards of competitors. That is not to say that they have pertinency here. Salmon had put himself in a position in which thought of self was to be renounced, however hard the abnegation. He was much more than a coadventurer. He was a managing coadventurer. Clegg v. Edmondson, 8 D. M. & G. 787, 807. For him and for those like him the rule of undivided loyalty is relentless and supreme. Wendt v. Fischer, supra, Munson v. Syracuse, etc., R. R. Co., 103 N. Y. 58, 74, 8 N. E. 355. A different question would be here if there were lacking any nexus of relation between the business conducted by the manager and the opportunity brought to him as an incident of management. Dean v. MacDowell, 8 Ch. Div. 345, 354; Aas v. Benham, [1891] 2 Ch. 244, 258; Latta v. Kilbourn, 150 U. S. 524, 14 S. Ct. 201, 37 L. Ed. 1169. For this problem, as for most, there are distinctions of degree. If Salmon had received from Gerry a proposition to lease a building at a location far removed, he might have held for himself the privilege thus acquired, or so we shall assume. Here the subject-matter of the new lease was an extension and enlargement of the subject-matter of the old one. A managing coadventurer appropriating the benefit of such a lease without warning to his partner might fairly expect to be reproached with conduct that was underhand, or lacking, to say the least, in reasonable candor, if the partner were to surprise him in the act of signing the new instrument. Conduct subject to that reproach does not receive from equity a healing benediction. 275

*469 A question remains as to the form and extent of the equitable interest to be allotted to the plaintiff. The trust as declared has been held to attach to the lease which was in the name of the defendant corporation. We think it ought to attach at the option of the defendant Salmon to the shares of stock which were owned by him or were under his control. The difference may be important if the lessee shall wish to execute an assignment of the lease, as it ought to be free to do with the consent of the lessor. On the other hand, an equal division of the shares might lead to other hardships. It might take away from Salmon the power of control and management which under the plan of the joint venture he was to have from first to last. The number of shares to be allotted to the plaintiff should, therefore, be reduced to such an extent as may be necessary to preserve to the defendant Salmon the expected measure of dominion. To that end an extra share should be added ot his half. 276

Subject to this adjustment, we agree with the Appellate Division that the plaintiff's equitable interest is to be measured by the value of half of the entire lease, and not merely by half of some undivided part. A single building covers the whole area. Physical division is impracticable along the lines **549 of the Bristol site, the keystone of the whole. Division of interests and burdens is equally impracticable. Salmon, as tenant under the new lease, or as guarantor of the performance of the tenant's obligations, might well protest if Meinhard, Claiming an equitable interest, had offered to assume a liability not equal to Salmon's, but only half as great. He might justly insist that the lease must be accepted by his coadventurer in such form as it had been given, and not constructively divided into imaginery fragments. What must be yielded to the one may be demanded by the other. The lease as it has been executed is single and entire. If confusion has resulted from the union of adjoining parcels, the trustee who consented to the *470 union must bear the inconvenience. Hart v. Ten Eyck, 2 Johns. Ch. 62. 276

Thus far, the case has been considered on the assumption that the interest in the joint venture acquired by the plaintiff in 1902 has been continuously his. The fact is, however, that in 1917 he assigned to his wife all his 'right, title and interest in and to' the agreement with his coadventurer. The coadventurer did not object, but thereafter made his payments directly to the wife. There was a reassignment by the wife before this action was begun. 276

We do not need to determine what the effect of the assignment would have been in 1917 if either coadventurer had the chosen to treat the venture as dissolved. We do not even need to determine what the effect would have been if the enterprise had been a partnership in the strict sense with active duties of agency laid on each of the two adventurers. The form of the enterprise made Salmon the sole manager. The only active duty laid upon the other was one wholly ministerial, the duty of contributing his share of the expense. This he could still do with equal readiness, and still was bound to do, after the assignment to his wife. Neither by word nor by act did either partner manifest a choice to view the enterprise as ended. There is no inflexible rule in such conditions that dissolution shall ensue against the concurring wish of all that the venture shall continue. The effect of the assignment is then a question of intention. Durkee v. Gunn, 41 Kan. 496, 500, 21 P. 637, 13 Am. St. Rep. 300; Taft v. Buffum, 14 Pick. (Mass.) 322; cf. 69 Am. St. Rep. 417, and cases there cited. 276



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