Buck v. Smith

• Decision Date: 08 April 1874
• Citation: 29 Mich. 166
• Court: Michigan Supreme Court
• Parties: Moses Buck v. William Smith

29 Mich. 166

Moses Buck v. William Smith

Supreme Court of Michigan

April 8, 1874

Heard January 15, 1874

Appeal in Chancery from Cheboygan Circuit.

Bill for specific performance of partnership agreement accounting, &c. Complainant appeals. Affirmed.

Decree dismissing the bill affirmed, with costs.

Moses Buck, in person, and D. W. Perkins, for complainant.

C. I Walker, for defendant.

Graves Ch. J. Campbell and Cooley, JJ., concurred. Christiancy, J. did not sit in this case.

OPINION

Graves, Ch. J.

This is an appeal by complainant from a final decree by the circuit court for the county of Cheboygan in chancery dismissing the bill.

The record is quite imposing, but it is unnecessary to repeat much of it, or to enter into a minute or extended discussion. There are several grounds of objection more or less serious to any explict relief in equity. Our attention will be chiefly confined to one which is insuperable.

The bill is by the complainant against Smith alone, to compel a specific performance and for incidental relief. The leading and material features of the case which the complainant sets forth, and on which his equity is grounded, may be briefly indicated.

He states in substance that in 1867, George W. Swan, John R. McArthur, William McArthur and John F. McDonald were in partnership under the name of McArthur & Co.; that the members of the firm owned as tenants in common a large amount of pine lands in the counties of Cheboygan, Presque Isle, Otsego and Emmet, in this State, and mills, water-power and other real property, the said Swan and John R. McArthur holding an undivided half; that the firm also owned and held there a very large and valuable personal property, consisting, among other things, of lumber, timber, shingles, store goods, teams, tools, machinery and the like, suitable for large lumbering operations; that the firm were carrying on the business of manufacturing and selling lumber on an extensive scale, using the pine on the lands before mentioned as needed; that Smith resolved to purchase the interest of Swan and John R. McArthur and then to enter into partnership with the other proprietors, namely: McDonald and William McArthur, with the view of erecting new mills, improving the property in various ways, and carrying on the lumber business; that in contemplation of such purchase and the institution of such firm, it was understood between complainant and Smith that the purchase, when effected, should be for their joint benefit; that Smith should advance the required funds for the purchase, and so much as should be necessary in carrying on the operations of the expected partnership, and should take the title; that complainant, being skilled and having experience in such business, should be a partner in the contemplated firm, and should put in his special skill and his services, and in that way, and from the profits and gains in the business, make up his share of the outlay; that complainant was to remove to Cheboygan and be an active co-partner in the new firm, and be the general manager of the business, and exercise the general control and supervision.

It is then stated that Smith proceeded to buy the half interest of Swan and John R. McArthur, and on the 26th of November, 1867, took a conveyance in his own name, and that shortly afterwards, and on the 10th of January, 1868, he and complainant, in furtherance of the foregoing understanding between them, entered into the following written agreement:

"Memoranda of agreement, made this 10th day of January, A. D. 1868, by and between William Smith, of Westfield, New York, of the first part, and Moses Buck, of East Saginaw, Michigan, of the second part, witnesseth; that said Smith claims to own and be possessed in fee simple of certain lands, water-power and personal property, same purchased of John R. McArthur and Geo. W. Swan, by their deed of November 26th, 1867. Now the said Smith hereby agrees to sell, and convey, by deed of quit-claim, to said Buck, one-half of said purchase, being one-fourth part of all said property described in said McArthur and Swan's deed, situate in the counties of Cheboygan, Presque Isle, Otsego and Emmet, in the State of Michigan,--five dollars is hereby acknowledged,--and said Buck agrees to pay fourteen thousand dollars in five years from November 26th, 1867, with interest, annually, at twelve per cent. Per annum, and also one-half of all improvements and expenditures to erect mills, cut logs, and do all and every part of the necessary outlay for a general lumber manufacturing business; also, to go and reside at Cheboygan, and attend personally and industriously to said lumbering business; it is further agreed that none of the personal effects connected with this purchase shall be claimed or used by said Buck for other purposes than the company business in connection with said lumbering establishment, so long as any part of said payment remains unpaid; but said Buck shall have right to pay any and all such sums at any time, when and as fast as he so elects; and the said Smith agrees to deed whenever so fully paid, from profits of business or otherwise."

It is not unworthy of notice that the bill does not allege that complainant had any understanding or agreement with either William McArthur or McDonald, two of the proprietors who were to be parties to the contemplated partnership, that he was to become a partner with them or be admitted to the control and supervision of any interest they had or might have.

After the written contract with Smith, complainant alleges that he proceeded to act up to the spirit of his arrangement with him; that he was ready and desirous to enter into the projected partnership, and ready and anxious to assume and take upon himself the management and control of the property and affairs, and that he paid to Smith, by the note of one William Peter,...