Ledford v. Emerson

• Decision Date: 15 December 1905
• Citation: 52 S.E. 641,140 N.C. 288
• Court: North Carolina Supreme Court
• Parties: LEDFORD . v. EMERSON.

52 S.E. 641

140 N.C. 288

LEDFORD .

v.EMERSON.

Supreme Court of North Carolina.

Dec. 15, 1905.

1. Joint Adventures—Dissolution—Action between Partners.

Where a partnership was formed to engage in a single venture or purchase, which had been closed, and nothing remained but to pay over the claimant's share of the proceeds, the claimant was entitled to maintain an action at law against his partner for the amount due.

[Ed. Note. For cases in point, see vol. 29, Cent. Dig. Joint Adventures, § 7.]

2. Arrest—Civil Action—Fraud.

Where, in an action by a partner in a joint adventure to recover the amount due from his copartner, plaintiff alleged and proved intentional fraud on the part of defendant throughout the entire transaction, and the trial judge found that defendant was guilty of fraud as alleged, plaintiff was entitled to a continuance of an order of arrest granted under Code, § 291, subsec. 4, providing that, when a defendant has been guilty of fraud in incurring the obligation for which the action is brought, an order of arrest may be issued.

Appeal from Superior Court, Cherokee County; Neal, Judge.

Action by John P. Ledford against A. S. Emerson. From an order discharging an order of arrest in a civil action, plaintiff appeals. Reversed.

See 51 S. E. 42.

The principal action was instituted in July, 1903, to recover plaintiff's share arising from a sale of certain options on land situated in north Georgia, same having been procured by plaintiff in the years 1900, 1901 etc., and sold by defendant in April, 1903. at a price of $10,000. The allegation and testimony of plaintiff tended to show that plaintiff procured a large number of options on land in north Georgia, and took same in the name of defendant, under an agreement that defendant was to advance the incidental expenses, sell said options, and divide the profits equally with the plaintiff; that defendant, having sold said options at the price of $10,000, fraudulently concealed the facts from plaintiff and paid plaintiff $250. which plaintiff took under false and fraudulent assurances as to the disposition of the options, giving defendant his receipt in full, and defendant had failed to make any other or further payments to plaintiff by reason of said deal, etc. As ancillary to the principal action, an order of arrest was issued in the cause on affidavits duly made on February 15, 1904, and defendant was arrested thereunder and held to bail. There was a motion to discharge the order of arrest, heard before Judge Neal, as stated. Motion allowed, and plaintiff excepted and appealed.

Axley & Axley, E. B. Norvell, and Busbee & Busbee, for appellant.

Ben Posey and Dillard & Bell, for appellee.

HOKE, J. The judge below on the hearing found the facts contained in the plaintiff's affidavits to be true, and held, as a matter of law, that on these facts there was no right shown to arrest defendant. His honor thereupon discharged the order of arrest and entered judgment exonerating the bail from any and all liability by reason of his suretyship. This, as we understand, was on the idea that the facts disclosed a case of partnership, and in such case there was no legal right in one partner to cause the arrest of another. It is a well-recognized principle that, during the continuance of a partnership, one partner cannot sue another on any special transaction which may be made an item of charge or discharge in a general partnership account. This has sometimes been put on the ground that such a suit would necessitate that the party complained of should be both plaintiff and defendant. But I apprehend a reason of more moment is that as to such a transaction, till a full accounting is had, it cannot be ascertained or declared what portion of such claims belong to the one or the other; and so it is true that one partner, during the continuance of the partnership, cannot ordinarily bring trover or trespass against the other by reason of acts concerning partnership property, unless the same be destroyed or removed entirely beyond the reach or control of the complaining party, for one has no more...