Greenwood v. Marvin

Citation111 N.Y. 423,19 N.E. 228
PartiesGREENWOOD v. MARVIN et al.
Decision Date27 November 1888
CourtNew York Court of Appeals

OPINION TEXT STARTS HERE

Appeal from supreme court, general term, Fifth department.

Action by Elizabeth W. Greenwood, as executrix and trustee of the will of Simon L. Greenwood, deceased, against Elizabeth S. Marvin, Percy L. Marvin, as executor of George L. Marvin, deceased, and individually, and the heirs and legatees of George L. Marvin and George L. Kingston, executor of Le Grand Marvin, deceased, for an accounting of the partnership affairs of George L. and Le Grand Marvin. The action was originally commenced by Simon L. Greenwood, as assignee of Le Grand Marvin's interest in the copartnership property. A decree having been entered for plaintiff, the defendants Elizabeth S. Marvin and Percy L. Marvin appeal from the order denying a new trial.

Percy L. Marvin, in pro. per., (George Wadsworth, of counsel.) George H. Marvin, (Spencer Clinton, of counsel,) for Elizabeth S. Marvin.

Adelbert Moot, for respondent and George L. Kingston.

RUGER, C. J.

This action was originally brought by Simon L. Greenwood, assignee of Le Grand Marvin, to procure a dissolution of the partnership theretofore existing between Le Grand and George L. Marvin, a determination as to what constituted the assets of the firm, the conversion of such assets into money, the payment of the firm obligations, and an accounting between the respective members in regard to all their partnership transactions, and a determination of their several interests in the residue of such property. The complaint contained express allegations that certain real property therein specifically described was partnership property, and constituted a part of the firm assets. The original answer of the defendants, while admitting the existence of the partnership, stated, with respect to the allegations relating to the ownership of the real property, as follows: ‘And they deny that said Le Grand and George L. Marvin, as copartners, owned or held in the name of said George L. Marvin, as trustee or otherwise, the real estate mentioned or described in said complaint, or any part thereof, or that they were at any time copartners in any real estate purchased with money or means charged to the respective partners; and said defendants deny that in any real estate mentioned or described in said complaint, the legal title to which is in the said George L. Marvin, said Le Grand Marvin had had at any time any interest whatever, except such as he may have obtained under and by virtue of a certain instrument in writing executed by the said Le Grand and George L. Marvin, of which the following is a copy.’ Then follows a copy of a partnership agreement between the parties, executed in 1852, which is hereinafter recited, so far as it is material to the questions in this case. This answer is plainly evasive, and leaves the question of the ownership of the real estate, in terms, to depend upon the construction to be given to the agreement of 1852. Upon the trial of the action before the court without a jury, an interlocutory judgment was rendered, determining that certain portions of the real estate described in the complaint were partnership property, and ordering a reference to take an account of the partnership affairs. This judgment was affirmed upon appeal to the general term, and from such judgment the defendants appeal to this court.

It is not our intention to enter into a detailed examination of the evidence in the case, inasmuch as that duty has been most fully and satisfactorily performed by Mr. Justice SMITH in his opinion at general term, and we will therefore refer only to such additional facts and considerations as have been suggested upon the argument in this court. It has already been seen that the main question in the case is whether certain real estate, purchased during the existence of the partnership, and title taken in the name of George L. Marvin, was partnership property, and belonged to the firm, or was the individual property of George L. Marvin. As found by the trial court, the parties formed a partnership under the firm name of Le Grand & George L. Marvin, to do a land-agency and real-estate business at Buffalo, in 1838, which continued without practical change in its mode of doing business until 1864, when it was terminatedby mutual consent. A written agreement of partnership was executed at the organization of the firm in 1838, by which the members were to become equal partners in a business already established, and which had for some time been carried on by Le Grand alone, and called ‘law and agency business, and business appertaining thereto.’ In 1842 other written agreements were made between the parties, by which it was provided, among other things, that the original firm was dissolved, but that its members should still continue the partnership, and complete the business of the old firm, but that George L. should be the legal owner of the property employed and acquired in such business, but should pay to Le Grand for his services his expenses, provided they did not exceed one-half the net profits of the concern, and should account to him for such net profits. In 1852 a third agreement was made between them, by which, among other things, it was provided that the partnership firm should continue at the equal benefit and risk of the respective parties, and declaring that ‘the real estate and the interest therein of said parties, whether standing in the name of said Le Grand or George, shall be and are for the equal benefit and interest of said parties, share and share alike, subject to all liabilities. * * * The personal property of said parties is now the equal property of said parties, share and share alike,’ with a single exception, not now important to notice.

It further appeared that no settlement of partnership accounts had ever been had between the members of the firm, and, although they kept books of account, they were kept in such a manner that it was impossible to determine accurately therefrom how much either of the members of the firm had drawn from or paid to or for the firm, or what the respective interests of the parties were in the partnership assets. It did appear, however, that the purchase price of the real estate in question, which was mainly acquired in 1842, was paid from partnership funds; and the taxes and expenses thereon were generally paid indifferently by both members of the firm, and its rents, issues, and profits had been collected, received, and accounted for to the firm, as firm property, indifferently by each of the parties. Much other evidence was also given in relation to this subject upon the trial, including the making of express and implied admissions and declarations by George L. Marvin in connection with the possession, occupation, and leasing of such real estate, that the same belonged to the firm. Some declarations, written and oral, of Le Grand Marvin, made mostly between the spring of 1842 and the year 1852, to the effect that George L. Marvin was the owner of the property, were testified to on the part of the defendants; but we ascribe little weight to them, inasmuch as there were obvious reasons, fully disclosed in the negotiations leading to the purchase of the property, on account of which at the time it was thought best by all parties that the title thereto should be vested in George L. Marvin, and the same reasons which dictated that course would continue to influence any declarations thereafter made by Le Grand in reference to the subject. The only change made in the rights of the parties by the agreement of 1842 was to place the legal title of their property and acquisitions in George L. Marvin, instead of the firm. The equitable rights of the parties were to remain the same. The legal owner was to account to the other party for the net profits of the business, and no other mode of division is suggested than that of equality. If, therefore, that agreement effected any change in the relations of the parties, it operated as a temporary expedient to bridge over the period of Le Grand Marvin's pecuniary embarrassment, presumably with a view of restoring the original relations of the parties at some future time when it would be safe to do so. If that agreement was executed-as seems very probable-with the view of hindering and delaying the creditors of Le Grand, it was still competent for the parties, in the absence of interference by creditors, to rescind it at any time, and to restore to each other an equal legal interest in the property acquired under such agreement. We think this was intended to be accomplished by the contract of 1852. That agreement amounted to an unqualified acknowledgment by George L. Marvin that the parties had theretofore dealt in and acquired real estate, and owned such property as partners, although it nominally stood in the name of George L. Marvin; and that such property was intended to be subjected to the obligations of the last partnership agreement. It did not purport to convey any property, or create any title; but it acknowledged that the property previously acquired by the parties,...

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9 cases
  • In re Perlhefter
    • United States
    • U.S. District Court — Southern District of New York
    • March 24, 1910
    ... ... of Shatz's wife until after this trust had been executed ... and the firm creditors paid. Greenwood v. Marvin, ... 111 N.Y. 423, 19 N.E. 228. It might however, have been a ... transfer in fraud of Perlhefter's individual creditors, ... and as ... ...
  • Cooper v. Cooper
    • United States
    • Alabama Supreme Court
    • September 21, 1972
    ...§ 301. 'Such statements are amply supported by adjudged cases. Among others, see Fairchild v. Fairchild, 64 N.Y. 471; Greenwood v. Marvin, 111 N.Y. 423, 19 N.E. 228; Sherwood v. St. P. & C.R. Co. 21 Minn. 127; Marsh v. Davis, 33 Kan. 326, 6 Pac. 612. Such real estate, so purchased and held,......
  • Robinson v. Horner
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    • June 28, 1911
    ... ... Ind. 233] Chester v. Dickerson (1873), 54 ... N.Y. 1, 13 Am. Rep. 550; King v. Barnes ... (1888), 109 N.Y. 267, 16 N.E. 332; Greenwood v ... Marvin (1888), 111 N.Y. 423, 19 N.E. 228; ... Meagher v. Reed (1890), 14 Colo. 335, 24 P ... 681, 9 L. R. A. 455; Flower v. Barnekoff ... ...
  • Jensen v. Barbour
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    • November 28, 1892
    ... ... 635; Black, Judgm. §§ ... 691,692; Page v. Esty, 54 Me. 319; Grier v ... Jones. 54 Ga. 154; Easton v. Pickersgill, 75 ... N.Y. 599; Greenwood v. Marvin, Ill N. Y. 423, 19 ... N.E. 228, Nachtsheim v. Turner, (Wis.) 36 N.W. 638; ... Roulhac v. Brown, 87 N.C. 1; Wings v. Hooper, ... (N. C.) ... ...
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