Davies v. Atkinson

• Decision Date: 09 May 1888
• Citation: 124 Ill. 474,16 N.E. 899
• Parties: DAVIES v. ATKINSON et al.
• Court: Illinois Supreme Court

124 Ill. 474

16 N.E. 899

DAVIES

v.ATKINSON et al.

Supreme Court of Illinois.

May 9, 1888.

Appeal from appellate court, First district.

John Taylor Davies, of Liverpool, England, brought bill against John Arthur Atkinson, of Chicago, for an accounting of the copartnership business carried on between them at Chicago under the firm name of Davies, Atkinson & Co. After the dissolution of the firm and the appointment of a receiver, complainant brought a supplemental bill against John Arthur Atkinson, V. W. Macfarlane, Charles Schwartz, John Dupee, Jr., Lawrence Newman, Willaim L. Pope, Richard L. Davies, B. F. Stauffer, Frank A. Crittenden, William R. Harvey, James P. Sherwin, John T. Lester, R. A. Peters, Samuel W. Allerton, O. H. Roche, F. G. Logan, Frank K. Dunn, and Frank G. Kammerer, to recover money paid them by Atkinson for losses sustained in his speculations at the board of trade, which was dismissed in the superior court of Cook county, and appeal taken to the appellate court of the First district, from whose judgment of affirmance the case is brought for review to the supreme court.Smith & Pence

, for appellant.

Wm. Garnett, Jr., for appellees Logan and Dunn.

H. L. Morse, for appellee Sherwin.

Bisbee, Ahrens & Decker, for appellees Schwartz, Dupee, Jr., Newman, Macfarlane, Stauffer, Harvey, Crit tenden, Roche, Kammerer, W. J. Pope, and R. L. Davies.

MULKEY, J.

On the 20th day of July, 1880, the appellant, John T. Davies, of Liverpool, England, and appellee John A. Atkinson, of Chicago, Ill., entered into a written agreement to become copartners together, under the firm name of Davies, Atkinson & Co., ‘in the business of buying hogs and hog products, and curing, packing, and shipping the same to J. T. Davies & Company, of Liverpool, England, for sale on account of the firm of Davies, Atkinson & Co., on commission;’ also for buying provisions on commission for shipment to the continent of Europe and elsewhere. The partnership business was to be conducted at Chicago, where the same business had previously been carried on between Davies and Isaac Atkinson, the father of Atkinson, lately deceased. The business was to continue indefinitely at the will of the parties, and until determined as in the agreement provided. By the third article of the agreement it is provided as follows: ‘ Third. It is expressly agreed that, during the existence of the copartnership, the said John Arthur Atkinson shall draw from the said firm a sum not exceeding twenty-five hundred ($2,500) dollars half-yearly, and that all sums so drawn by him shall be charged against his share of the profits in said concern.’ ‘It is also agreed that, during the existence of said copartnership, the said Atkinson shall not buy, sell, speculate with, or mortgage any firm assets, except as required in the ordinary copartnership business; and that the said Atkinson shall not engage in any speculations or business ventures on his own account outside of the business of the said firm, and shall not sign or indorse any notes, bonds, or obligations for other parties, either as security or otherwise, or in any manner become surety for any person or persons whomsoever, without the consent of said John T. Davies.’ The partnership continued from the date of the articles until the 4th day of October, 1884, when it was formally dissolved. The business during this time was conducted mainly under the personal supervision of Atkinson; the complainant being in Europe much of the time. On the 21st of October, 1884, Davies filed in the superior court of Cook county the original bill in this case, making Atkinson alone defendant, charging him with gambling upon the Chicago board of trade, in violation of the articles of partnership, and with misappropriating the partnership funds to pay individual losses thus incurred, amounting in the aggregate to $200,000. The bill prayed for the appointment of a receiver, an accounting, and a settlement of the partnership affairs. The day after the filing of the bill, Atkinson entered his appearance, and filed an answer, wherein it was admitted that he had speculated on the board of trade on his own account, and drawn checks on the partnership funds in payment of his individual losses, in favor of the various persons mentioned in the bill, to the amount of $27.012; but it is charged that these transactions were legitimate, and according to the custom and usage of the board of trade, and that the various checks drawn by him in payment of his losses were charged up to him on the partnership books. The checks in question were drawn in favor of, and were paid to, appellees other than Atkinson. On the 23d of October, the court made an order appointing Robert Y. Hibden receiver, who made an inventory of the visible assets of the firm, which amounted in value to $45,006.45, and were subsequently sold...