Boreing v. Wilson

• Decision Date: 25 March 1908
• Citation: 128 Ky. 570,108 S.W. 914
• Parties: BOREING et al. v. WILSON et al.
• Court: Kentucky Court of Appeals

108 S.W. 914

128 Ky. 570

BOREING et al. v. WILSON et al.

Court of Appeals of Kentucky.

March 25, 1908

Appeal from Circuit Court, Bell County.

"To be officially reported."

Action by John H. Wilson against James M. Boreing and others for a settlement of partnership accounts, in which prayer M. J Moss joined by answer, counterclaim, and cross-petition. From a judgment that a partnership existed, and prescribing a settlement, defendants, except Moss, appeal. Affirmed.

D. B Logan and Green & Van Winkle, for appellants.

Wm Ayres, for appellee Wilson, J. R. Sampson, for appellee Moss.

CLAY C.

In the spring of the year 1886 appellee John H. Wilson was engaged in the practice of law in Barbourville, Knox county, Ky. His services were secured by the Louisville & Nashville Railroad Company after that corporation had decided that it would construct a branch railroad from Corbin, on the main line of its Knoxville division, up the Cumberland river, into the coal fields of Bell and Harlan counties, or through Cumberland Gap into the coal fields of Wise and Lee counties, Va. After appellee Wilson had learned that the road would be constructed, he could readily see that the coal-bearing properties along the line of the proposed road would of necessity rapidly advance in price, and that the purchase of the lands at the low prices then prevailing, and before it became known that the road would be constructed, would prove a very profitable investment. Appellee had formed the acquaintance of his coappellee, M. J. Moss, some time prior to 1886, who was engaged in the practice of law in Bell county, and was well acquainted with the inhabitants of that county, and especially the landowners along the line of the proposed railroad. Accordingly they agreed to go into an arrangement by which they would purchase lands and hold them until the prices advanced. Realizing that it would take a large sum of money to carry through the enterprise, they then proposed to Vincent Boreing, a wealthy and influential man in that section of the state, to join the enterprise. It was agreed between the parties to the arrangement that whatever cash was advanced or furnished by either was to be returned to him, with interest, and the profits were then to be divided equally among them. In pursuance of this arrangement about 5,000 acres of land were purchased. Frequently Moss or Wilson would propose that they get together and draw up a contract accurately defining the rights of each party to the lands in question. Sometimes Boreing would make the same proposition. No such contract, however, was ever signed. The matter was permitted to drag along from year to year, and finally, in the year 1903. Vincent Boreing died.

Thereafter appellee Wilson filed his petition in the Bell circuit court, alleging the existence of a partnership between him, Moss, and Boreing. To this petition appellee Moss and the heirs, devisees, and personal representatives of Vincent Boreing were made defendants. The petition, after setting forth the death of Boreing, the dissolution of the partnership by reason thereof, and the qualification of his administrators under the will, alleges that it was agreed at the inception of the partnership enterprise that Vincent Boreing should furnish the money necessary to acquire the lands, and that he (Wilson) and Moss should contribute in aid of the enterprise their services and assistance, and, when the land was sold, Boreing should receive the various sums of money which he had advanced from time to time in making the necessary purchases, as well as all reasonable and necessary expenditures in connection therewith, together with 7 per cent. interest on said sums of money from the time of their payment by Boreing. The petition further states that it was also agreed that he (Wilson) and Moss should, out of the proceeds, receive from time to time such money, with a like rate of interest thereon, as either of them might have contributed or paid out towards the purchase of said lands, in surveying expenses or other expenses incurred in the acquisition of title thereto; that Boreing had paid on said lands $30,000 or $35,000, that he (Wilson) had paid $2,000 to $2,700, and that Moss had paid $7,000 or $8,000; but that the exact amount that each had paid was unknown to appellee. Appellee then asked a settlement of the partnership accounts and a reference to the master commissioner for that purpose.

To appellee Wilson's petition, appellee Moss, on December 7, 1903, filed his answer, counterclaim, and cross-petition, making appellants cross-defendants, and joined in the prayer of appellee Wilson for a settlement of the partnership accounts. Appellee Moss also set forth in his answer and cross-petition the unsettled and uncertain state of the partnership accounts, as well as the fact that Boreing had furnished in the purchase of the lands $30,000 or $35,000, but that the exact amount was unknown to appellee. He also alleged that he had paid in about $7,500, but that Wilson had paid in only about $1,475. Both the petition of appellee Wilson and the answer and cross-petition of appellee Moss alleged that Boreing had received large sums of money in the way of rents and proceeds from the sale of lands and timber involved in the controversy, the exact amount of which they did not know. Among other items they alleged that Boreing had received $20,000 for 500 acres of land which was sold by him out of the partnership property to the Bell County Coke & Improvement Company, and that he had also received $3,000 for certain machinery on the Tuckehoe lease which he had sold to A. H. Melcon.

On January 13, 1904, the appellants herein filed their answer to the original petition of appellee Wilson, and also their reply to the answer, counterclaim, and cross-petition of appellee Moss, denying and putting in issue every material allegation of those pleadings. Thereafter certain amended pleadings were filed, and, among them, one by appellee Wilson asking for the appointment of a receiver to take charge of the property during the litigation. Responsive pleadings were then filed and the issues joined on all the material allegations of the several amendments. The court appointed a receiver, who qualified and is now in charge of the property. The parties then proceeded with the taking of testimony, and the special judge, Hon. John McChord, called a special term of the court in the month of July of that year, at which to hear the case.

On July 28, 1904, one of the administrators, John R. Boreing, presented and filed his affidavit with the clerk of the Bell circuit court, in which he claimed that appellants could not get a fair trial of their cause before said special judge. The latter decided that the affidavit was insufficient and declined to vacate the bench. After this affidavit was filed, the case was continued to the October term for further preparation, and was then submitted and tried. The court held that a partnership existed between Wilson, Moss, and Boreing; that in the settlement Vincent Boreing's estate should be charged with the sum of $3,000 for the machinery sold to A. H. Melcon, with 8 per cent. interest on said sum from the time the money was paid; that said Boreing's estate should be charged with the further sum of $20,000 for the land sold by Boreing to the Bell County Coke & Improvement Company, with 8 per cent. interest thereon from the time of the receipt of said sum by Vincent Boreing. On October 29, 1904, the court entered a judgment in accordance with his conclusion set out above. After the entry of this judgment, appellants filed their written motion asking the court to set aside certain parts thereof, and in support of the motion filed certain affidavits, together with the deed of conveyance executed by Vincent Boreing on the 23d day of May, 1890, to the Bell County Coke & Improvement Company. Upon the hearing of appellants' motion the court refused to set aside any portion of the judgment entered. Of the judgment and of the refusal of the trial court to set certain portions thereof aside, appellants now complain.

This appeal involves the determination of the following questions: (1) Did the special judge err in refusing to vacate the bench? (2) Did the transaction between appellees and Vincent Boreing constitute a partnership? (3) Was A. H. Melcon, who purchased the machinery on the Tuckehoe lease, competent to testify for appellees, and did the court err in charging the estate of Vincent Boreing with the sum of $3,000 paid by said Melcon for said machinery? (4) Did the court err in charging the estate of Vincent Boreing for the 500 acres of partnership land sold by Boreing to the Bell County Coke & Improvement Company, and fixing the sum to be charged at $20,000? (5) Did the court err in charging the estate of Vincent Boreing interest at the rate of 8 per cent. on said sums of $3,000 and $20,000 from the time said sums were received by him? (6) Did the lower court properly overrule the motion of appellants to set aside those portions of the judgment respecting said items of $3,000 and $20,000, and to refer same to the commissioner for further proof?

First. On July 28, 1904, appellant John R. Boreing, for himself and his coappellants, filed the following affidavit in which he set forth legal grounds why the special judge should vacate the bench:

"The affiant, John R. Boreing, says that he is one of the defendants in the above styled cause, and is the only one taking an active interest in the defense herein; that his codefendants, Julia T. Williams, Sallie Boreing, Belle Young, James M. Boreing, May Melcon, and this affiant are the only devisees of Vincent Boreing, deceased. The other defendants, to wit, A. H. Melcon, J. M. Williams, and Joseph Young

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