Andrews v. Stinson

• Decision Date: 18 April 1912
• Citation: 98 N.E. 222,254 Ill. 111
• Parties: ANDREWS et al. v. STINSON.
• Court: Illinois Supreme Court

254 Ill. 111

98 N.E. 222

ANDREWS et al.

v.STINSON.

Supreme Court of Illinois.

April 18, 1912.

Error to Appellate Court, Third District, on Appeal from Circuit Court, Logan County; T. M. Harris, Judge.

Action by F. J. Andrews and another, as executors of B. P. Andrews, deceased, against A. J. Stinson and another. From a judgment of the county court dimissing plaintiffs' petition for want of jurisdiction, plaintiffs appealed to the circuit court, where a demurrer was sustained to defendants' plea. On appeal that judgment was sustained by the Appellate Court, and defendant named brings error. Reversed and remanded, with directions.Welty, Sterling & Whitmore (Adams, Bobb & Adams, of counsel), for plaintiff in error.

Craig & Kinzel and Lawrence B. Stringer, for defendants in error.

In this case the executors of the last will of Baker P. Andrews, deceased, formerly a resident of Logan county, Ill., filed a petition in the county court of that county for a citation against A. J. Stinson and Nelson T. Hand, as surviving partners of said Andrews, to cause them to come into that court and make a settlement of the partnership affairs. A demurrer filed to the original petition was sustained, and leave given to file an amended petition. To this amended petition the plaintiff in error, Stinson, filed a verified plea. To this plea the defendants in error, the executors, demurred. The county court overruled the demurrer, and dismissed the amended petition for want of jurisdiction. From this judgment the defendants in error appealed to the circuit court of Logan county, and there again urged the demurrer to the plea, where it was sustained and an order entered that the plaintiff in error should answer the amended petition instanter. Plaintiff in error, Stinson, excepted to such ruling and elected to stand by his plea. Thereupon the circuit court entered judgment on the demurrer for costs and ordered citation to issue as prayed. From this order an appeal was prayed to the Appellate Court for the Third District, where the judgment of the circuit court was sustained. The cause has been brought here by writ of certiorari.

The original petition filed in the county court of Logan county alleged, among other things, that on January 2, 1905, Baker P. Andrews, of Lincoln, in said Logan county, and Archibald J. Stinson and Nelson T. Hand, of Chicago, entered into a partnership agreement to carry on the lumber business at Summerdale, in Chicago (which had already been carried on by them for some time), for three years, under the name of Stinson & Hand. The petition set out in full the partnership agreement. The main provisions necessary to be considered here in reaching a conclusion are as follows: ‘The capital of this new firm shall be $80,000, of which sum said Andrews furnishes one-half-that is to say, $40,000-and the said Stinson and Hand each furnishes one-fourth-that is to say, $20,000 each. * * * Each of the parties hereto may at the end of each calendar month draw from the fund of said firm the sum of $200 for his own individual use. * * * It is expected and hereby agreed that said Stinson and Hand are to attend to and manage the details of said business and devote all their time and attention thereto, but the said Andrews shall only devote so much of his own time and attention thereto as in his judgment are for the best interest in said business; and the said Stinson and Hand shall also, as they have hitherto done, keep or have kept accurate books of account showing at all times the true condition of said business, and shall also submit each month, as they have hitherto done, to said Andrews, a statement showing, in detail, the then condition of said business substantially in the manner heretofore used. Should any of the parties to this article die while it is in force, the survivor or survivors shall have one full year from date of such death to close up and settle the copartnership business, and no longer.’

Under this agreement the firm proceeded to do a lumber business and conduct a lumber yard at Summerdale; the land being in Andrews' name under a declaration of trust. The petition further alleged that on July 22, 1906, Baker P. Andrews died testate, appointing defendants in error his executors; that said executors learned soon thereafter that Stinson and Hand, a short time before Andrews' death, had purchased and taken title to a tract of 960 acres of land in Alabama, taking the purchase money from the assets of said firm; that said executors refused to have anything to do with said land or to consider it a part of the partnership enterprise, and thereupon Stinson and Hand formed a copartnership between themselves for the manufacture of lumber taken from the said land; that said Andrews' will provided that the partnership business might be carried on, in the discretion of the executors, after his death, provided it was showing a profit of 6 per cent.; that after the business had been carried on until August 9, 1907, and no settlement had been made by Stinson and Hand, the executors on that date entered into an extension contract with said surviving partners. This is set out in full in the petition. After reciting the making of the partnership agreement, death of Andrews, probate of will and appointment of executors, it provides: ‘Now, therefore, in consideration of the premises and the mutual benefits to accrue to the said surviving partners and the estate of said deceased partner, it is hereby agreed that the said agreement of January 2, 1905, by reason of the death of the said Baker P. Andrews, as aforesaid, may continue in effect until January 15, 1908, at which time the said partnership is to be settled and closed, as provided in the said agreement of January 2, 1905. It is not intended, however, hereby to alter, modify, or change in any way, other than by the extension above set forth, any of the provisions of said agreement of January 2, 1905.’ The petition further stated that said business was carried on under the original and supplemental contracts until March 12, 1908, when Stinson and Hand and the executors entered into another contract in relation to said business. Said contract, after reciting much of the substance of the two former agreements, stated that it had become impracticable,and not for the best interests of all the parties, to settle the partnership as provided in the extension agreement of August 9, 1907. The parts of the new agreement required for an understanding of the facts here are as follows: ‘And it appearing from a statement rendered by the said Stinson and Hand in relation to said business that the interests of the said estate of Baker P. Andrews, arising from the money so invested in said business and from the profits thereon, amounted to $54,115.66 on the 31st day of January, 1908, at which time said Stinson and Hand rendered an account to the said executors, and that the interest of said Nelson T. Hand in said business, arising from said capital so invested and the profits arising therefrom, amounted to $26,589.14, and that the interest of the said A. J. Stinson amounted to $23,968.57, arising from said investment in said business and the profits thereto: Now, therefore, it is hereby agreed by and between the parties that in order to equalize the capital stock as near as it may be under said original agreement, and that each of the said parties may participate in the profit equally as contemplated by the original agreement, and that each of said parties hereby mutually agree that the capital stock of said copartnership shall be $95,874.28-that is to say, the capital invested heretofore and the profits arising from the said business-the interest of said Baker P. Andrews is at the present time $47,937.14, and the capital invested by Nelson T. Hand, and the profits arising therefrom, is $23,968.57, and the capital remaining invested by said A. J. Stinson is $23,968.57. And it is further agreed that the said firm of Stinson & Hand shall give to the executors of the estate of the said Baker P. Andrews a note for the sum of $6,178.52 and a note to the said Nelson T. Hand for the sum of $2,620.57, * * * and that said notes are given for the purpose of equalizing the respective interests of each of the said partners in said business. And it is further agreed by and between the parties that the statement rendered by the said Stinson and Hand of the business of said firm January 31, 1908, shows that there is now due said firm on account of land shown on the books and known as southern land, near Citranel, Alabama, the sum of $9,637.09, and that the purchase of said land and the manufacture of lumber from the timber thereon was outside the business contemplated by the said contract of copartnership, and the said A. J. Stinson and Nelson T. Hand hereby assume and agree to pay and guarantee to the said firm of Stinson & Hand the said sum of $9,637.09 and interest at 6 per cent. from January 21, 1908, and the said A. J. Stinson and the said Nelson T. Hand hereby agree, on their part, to convert all the assets in connection with said land, including said land, if necessary, and all lumber, timber, and all mules, wagons, or other property purchased in relation to the same into cash as soon as possible. * * * And it is further provided in this agreement that the said Stinson and Hand shall devote all their time and attention to the said business, and that they shall render to the said executors of the estate of Baker P. Andrews a true and correct statement of each month's business at the end of each month. * * * And it is further agreed by and between the parties that on the last day of each month during which time this contract is in force the said A. J. Stinson, Nelson T. Hand, and the executors of the estate of Baker P. Andrews shall each draw the sum of $250 per month, commencing on the 31st day of March, 1908, * * * from the profits of said business, and is to be in full...