Coltrane v. Gill.

• Decision Date: 08 September 1925
• Docket Number: (No. 5406)
• Citation: 99 W.Va. 447
• Parties: Joseph N. Coltrane v. Michael P. Gill et al.
• Court: West Virginia Supreme Court

99 W.Va. 447

Joseph N. Coltrane

v.Michael P. Gill et al.

(No. 5406)

Supreme Court of Appeals of West Virginia.

Submitted September 2, 1925.

Decided September 8, 1925.

1. Appeal and Error To Be Appealable as Adjudicating Principles of Cause, Decree Must Ordinarily Adjudicate All Questions Properly Raised by Pleadings.

To be appealable, as adjudicating the principles of a cause, a decree must ordinarily adjudicate all the questions properly raised by the pleadings. (p. 451.)

2. Same To Be Appealable, Judgment of Court Must Be Actually Entered.

A finding of fact and the conclusions of the court thereon do not render a decree appealable, even though the intention of the court to render a certain judgment is clearly apparent therefrom. The judgment of the court must be actually entered. (p. 454.)

Appeal from Circuit Court, Harrison County.

Suit by Joseph N. Coltrane against Michael P. Gill and others, to dissolve a partnership, and for an accounting, and to have a conveyance set aside as fraudulent and the property conveyed subjected to payment of share of partnership liabilities. Prom a decree dissolving the partnership and settling the indebtedness, defendants Michael P. Gill and John L. Gill appeal.

Dismissed.

Frank C. Raymond and J. C. McManaway, for appellants. Coff man & Morris, for appellee.

Hatcher, Judge:

This case is here on the appeal of Michael P. Gill and John L. Gill from a decree rendered by the Circuit Court of Harrison County.

In October of 1921, Joseph N. Coltrane, his son, E. Glenn Coltrane and his son-in-law, Michael P. Gill formed a partnership for the purpose of conducting a general retail store at Lumberport, West Virginia. The partnership existed un- der an oral contract until January 22nd, when it was reduced to writing. The salient points of the written contract are that the partners each contributed $750.00 to the partnership funds and were equal partners in the adventure; that the store building in which the business was conducted was furnished by Joseph N. Coltrane free of rent; that Michael P. Gill should manage the partnership business; that E. Glenn Coltrane should be the treasurer and should handle the moneys of the firm, keep its books, and make collections; that Gill and E. Glenn should each be paid a monthly salary of $50.00; that neither the total debts of the firm, nor the total amount of its credits, should at any time exceed the sum of $3,000.00.

Dissensions arose among the partners and the affairs of the partnership soon became badly involved. Details of its course are unnecessary. "We have here but a repetition of the old story of a house divided against itself. On June 19th, 1922, Michael P. Gill, sensing the approaching denouement conveyed, without consideration, his interest in some valuable lots to his brother, John L. Gill. About August 16th, 1922, Michael P. withdrew from the store, and thereafter had nothing to do with it. The plaintiff thereupon assumed its management, and later, to-wit: on September 22nd, 1922, brought this suit.

The bill alleges that M. P. Gill badly managed and improperly ran the partnership business, that he withdrew for his own personal use more than $2,000.00 from the partnership funds, and that the partnership was insolvent on June 19th, 1922, the date of the Gill conveyance. The bill prays for a dissolution of the partnership, an accounting and settlement of its affairs, and to have the conveyance of M. P. to John L. Gill set aside as fraudulent, and the property thereby conveyed subjected to payment of M. P. Gill's share of the partnership liabilities.

The defendant, E. Glenn Coltrane, filed no answer, but in separate answers filed by the Gills, they admit that the conveyance from Michael P. Gill to his brother was without consideration. They severally deny, however, that the partner- ship was insolvent at the date of the conveyance. M. P. Gill denies all charges of mismanagement and misconduct, makes counter-charges of misconduct against both the plaintiff and E. Glenn Coltrane, and alleges that the plaintiff took from the store without ever paying therefor large quantities of merchandise, amounting in value to at least $1,500.00.

The case was referred to a commissioner of the court, to take and state the partnership account. Over 700 pages of depositions were taken, and a large number of exhibits filed before the Commissioner. A considerable part of the evidence, both for the plaintiff and defendants was given in support of the several charges of mismanagement, and in regard to money and merchandise taken and not paid for by each of the partners. Upon this conflicting mass of testimony, the commissioner found, among other things:

(a) that "sometime after the business began, the firm became heavily involved financially, and finally insolvent"; (b) that since the beginning of this suit, the plaintiff paid out of his own funds debts of the partnership amounting to $5,475.00; (c) "that, from the record in this case, it is impossible for him to state an account of this partnership firm's financial condition, and to find what may be due from either of said partners to said partnership firm, or to the said plaintiff, Joseph N. Coltrane. It will be noted that the only tangible data produced in this cause, upon which to base a settlement, are two items, the first being the amount of cash contributed by each of the three members of the firm, and the other, the inventory taken just prior to the institution of this suit. * * * There has been no evidence offered as to the amount of cash sales, the amount of money deposited in the bank, cash on hand, accounts receivable, or accounts payable. * * * The only book of account kept, and produced before the commissioner, was a ledger containing a list of accounts payable. * * * It also contained two or three accounts receivable. * * * The original inventories were not filed nor satisfactorily accounted for. The accounts receivable appear to have been kept on the McCaskey Register system. They were not produced before the commissioner, al though., supposed to be in the control of the plaintiff and the defendant, E. Glenn Coltrane. "With this meager data, the commissioner is unable to state an account of this partnership business. * * * The plaintiff and defendant, E. Glenn Coltrane, upon the retirement of Michael P. Gill from the partnership, took exclusive control and charge of the partnership store, and have continued to run and operate it ever since. All of the assets of this firm went into their hands, and under their control, and the plaintiff, in his pleading and proof, fails to account for any moneys received from bills' receivable, cash on hand, or cash sales, at any time, from the inception of the partnership firm, or after the defendant, Michael P. Gill, retired therefrom;" (d) and that the conveyance of Michael P. Gill to John L. Gill was not made with intention to defraud the creditors of Michael P. Gill.

Numerous exceptions were taken by the plaintiff to the commissioner's report. Upon a consideration of these exceptions, the Circuit Court found as follows:

"1. That on the 22nd day of September, 1922, and for about one year prior thereto, Joseph N. Coltrane, E. Glenn Coltrane and Michael P. Gill were equal partners in a mercantile business at Lumberport, conducted under the firm name of Coltrane and Gill;

"2. That on the date last aforesaid the liabilities of said partnership far exceeded its assets;

"3. That on the date last aforesaid the said Michael P. Gill withdrew from further cooperation in the conduct of said business;

"4. That on the 19th day of June, 1922, the said Michael P. Gill conveyed to his brother, John L. Gill, without valuable consideration, his undivided one-half interest in and to those two certain lots * * *; that on the date last aforesaid the financial affairs of said partnership were badly involved a fact then known to Michael P. Gill and that the said conveyance was made by him in order to avoid impending liability as a member of said partnership, and, therefore, the said conveyance was a fraud on the creditors of said partner- ship and should be set aside on that ground;

"5. That the existing assets of said partnership must be converted into cash and application thereof made on the indebtedness of the partnership before the individual liability of any of the partners can be ascertained;

'' 6. That Joseph N. Coltrane has paid on the indebtedness of said partnership the sum of $5,-475.00, for which amount he should be credited in final settlement;

"7. That each of the partners will be held liable for one-third of the excess of indebtedness over assets, after the latter has been reduced to money and applied on the indebtedness; * * *

10. That in so far as the Commissioner's report is in conformity with the finding and holding herewith it should be confirmed.

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