Bingham v. Walk

• Decision Date: 28 April 1891
• Citation: 128 Ind. 164,27 N.E. 483
• Parties: Bingham et al. v. Walk et al.
• Court: Indiana Supreme Court

128 Ind. 164

27 N.E. 483

Bingham et al.

v.Walk et al.

Supreme Court of Indiana.

April 28, 1891.

Appeal from circuit court, Marion county; L. Howland, Judge.

Kuefler & Berryhill, for appellants. Herod & Herod, for appellees.

Miller, J.

This case was brought by Henry H. McGaffey, as administrator of the estate of Wheelock P. Bingham, deceased, against Julius C. Walk, Harriet H. Bingham, widow, and George M. Bingham and others, children of Wheelock P. Bingham, to determine the right of property of a jewelry store in the city of Indianapolis. The complaint avers that the defendant Walk and the decedent were equal partners in the jewelry store, which was of the value of more than $30,000; that after his appointment and qualification the administrator called upon the defendant Walk, and demanded of him an accounting of the partnership and firm affairs; that upon such demand the defendant Walk refused to account or to settle the business of the firm as surviving partner, asserting that Wheelock P. Bingham was not at the time of his death, and never had been, his partner in said business; that the estate of the deceased had no interest in the assets of the firm, but that the defendant Harriet A. Bingham was, and always had been, his partner in business. The defendants Walk and Harriet A. Bingham answered jointly by a general denial of the complaint, and in a second paragraph alleged that they were, and always had been, partners, composing the firm of Bingham & Walk; and Wheelock P. Bingham was not a partner in the firm, and had no interest therein. The appellants George M. Bingham and other children of Wheelock P. Bingham filed a general denial of the complaint, and also a cross-action against Walk and Harriet A. Bingham, charging that their father was a full partner in the business with Walk; that he refused to settle as a surviving partner; and asking for the appointment of a receiver to wind up the business of the firm and distribute the proceeds according to law. The cause was submitted to the court for trial upon the complaint and cross-actions, and resulted in a finding and judgment for the appellees Walk and Harriet A. Bingham. The administrator of Wheelock P. Bingham refuses to join in this appeal.

The sufficiency of the complaint is challenged by an assignment of error in this court; the objection being made that it does not show that Wheelock P. Bingham was indebted at the time of his death, so as to require any portion of the assets of the partnership to be applied to their liquidation, and that therefore the administrator was not an interested party within the meaning of section 6050, Rev. St. 1881. The administrator and the children of the deceased were not, in interest, adverse parties. In their pleadings they allege substantially the same facts, and ask the same relief. They were alike unsuccessful in the litigation. The appellees were their adversaries, and as between them the litigation was upon their crossactions. We could not reverse a judgment in favor of the appellees because some of the pleadings of their adversaries were insufficient. We do not, therefore, pass upon the sufficiency of the complaint as a cause of action.

One of the causes for a new trial, the overruling of which is assigned as error, was the alleged insufficiency of the evidence to sustain the finding of the court. The other cause relates to the admission of evidence over the objection of the appellants. The evidence, as it comes to us in the record, is very conflicting, and we cannot, therefore, under the well-established rules of this court, pass upon its sufficiency. A correct understanding of the ruling of the court upon the admission of evidence cannot be had without a review of portions of the testimony introduced. The evidence showed, without contradiction, the following facts: That W. P. Bingham was a practical jeweler of large acquaintance, who had been unfortunate in business, and in the year 1877 had been adjudged a bankrupt. That prior to receiving his discharge as a bankrupt a partnership was formed under the firm name of Bingham, Walk & Mayhew for the purchase of a stock of jewelry. That the appellee Julius C. Walk and one James N. Mayhew were two of the members of the firm. A stock of jewelry was purchased at the price of $16,187, of which $8,500 was paid in cash at the time of the purchase, and notes given for the residue, which were afterwards paid out of the earnings of the business. That this sum of $8,500 was made up as follows: Walk borrowed for himself and Bingham the sum of $3,000, being $1,500 for each. Mayhew, who had negotiated the trade, put in $5,500; but was to, and afterwards did, draw out $1,000 of that sum. That shortly before the formation of the partnership, Wheelock P. Bingham married the appellee, Mrs. Bingham, she being his second wife, and being worth several thousand dollars in her own right. That the appellants are the children of Bingham by a former wife. That the money borrowed by Walk was loaned upon security furnished by him, without assistance from either Bingham or his wife. That prior to the purchase of the stock of jewelry, Mrs. Bingham made an attempt to borrow money upon some collateral she held, but was unsuccessful; and, so far as the evidence shows, paid nothing into the firm, but that afterwards she paid $600 on the $1,500 note executed by her husband for the money that formed part of the cash payment for the stock. That for a part of the deferred payment on the stock of goods a note for $2,000 was signed by W. P. Bingham, Walk, and Mayhew individually, and the payment of the same secured by a mortgage on the individual property of Mayhew. The business was profitable from the start, all goods being paid for as purchased, and the notes executed in the purchase of the stock paid at or before they matured. That by agreement each member of the firm drew out, as salary, $25 per week, which was afterwards increased to $35, and then to $50. That about five years after the formation of the partnership Bingham and Walk purchased of Mayhew his third interest in the firm for $18,000, paying him in cash $12,000, and executing a note for $6,000, due three years after date, signed by W. P. Bingham and Julius C. Walk, and secured by a second mortgage on the separate real estate of Mrs. Bingham. That the name of W. P. Bingham was given as a member of the firm, on the business cards of Bingham, Walk & Mayhew; also on their letter-heads and bills. That he was also given as a member of the firm of Bingham, Walk & Mayhew and of Bingham & Walk in the city directory each year during the existence of these firms. That upon the dissolution of the firm of Bingham, Walk & Mayhew, caused by the retirement of Mayhew, the notice of dissolution published in the daily papers was signed by W. P. Bingham as a member of the firm. That Bingham was the principal manager of the business of both firms, made most of the purchases of goods, and had charge of the goods. That the salary account of the Bingham member of the firms was kept in the name of W. P. Bingham on the firm books. That during a portion of the time a small account was kept with Mrs. Bingham, and in her name, consisting mostly in charges for goods purchased by her in the store. That the administrator of the estate was selected by Walk and Mrs. Bingham, who renounced her right to administer in his favor.

The evidence about which there was a conflict was in the testimony of Mayhew, who testified that Wheelock P. Bingham was a partner while he was a member of the firm, and that Mrs. Bingham had nothing to do with the partnership. Also in the testimony of Albert G. Orens, who kept the books of the firm until the death of Bingham, who corroborated...