Deavitt v. Hooker

• Citation: 73 Vt. 143,50 A. 800
• Parties: DEAVITT v. HOOKER et al.
• Decision Date: 05 April 1901
• Court: Vermont Supreme Court

50 A. 800

73 Vt. 143

DEAVITT

v. HOOKER et al.

Supreme Court of Vermont. Washington.

April 5, 1901.

Appeal in chancery, Washington county; Tyler, Chancellor.

Bill by T. J. Deavitt, assignee in insolvency of B. P. White, against B. W. Hooker and L. A. Kent. From a decree dismissing the bill, orator appeals. Affirmed.

The orator, as assignee in insolvency of B. P. White, alleged a partnership between said White and the defendant Hooker, conducted under the name of B. W. Hooker & Co., and sought to have the alleged partnership wound up, and an accounting had.

Argued before TYLER. MUNSON, START, WATSON, and STAFFORD, JJ.

T. J. & E. H. Deavitt, for appellant.

J. W. Gordon, S. H. Jackson, and George W. Wing, for respondents.

WATSON, J. The material facts reported are that Hooker and one Wheeler were equal partners engaged in business under the firm name of B. W. Hooker & Co.; that Wheeler, and White, the insolvent debtor, executed their written contract dated October 11, 1895, whereby Wheeler bargained, sold, and conveyed his entire interest in and to the partnership and partnership property to White, in consideration whereof White agreed to assume the payment of certain promissory notes at the National Bank of Barre, amounting to $2,500, executed by Wheeler and others, and to cause the same to be taken up and delivered to Wheeler immediately; that White also agreed to assume and pay certain other notes and debts therein named as outstanding against Wheeler or the firm, and to pay Wheeler the sum of $500 on the 14th day of October, 1895, and the further sum of $400 in installments thereafter; that both parties regarded the trade completed, "except payment and surrender of possession of the property"; that White, by reason of some talk with the officials, had hopes of paying the notes at the bank with his own note, secured by western mortgages, but his credit had suffered by heavy losses, and the bank concluded not to accept his note; that thereupon, on October 14, 1895, White requested Kent—who had before signed notes with him—to sign a note as surety for $2,500, with which to take up these notes, but Kent objected to signing any more notes unless he could be secured; that White informed him of the trade with Wheeler, and it was then agreed that Kent should be the owner of the property purchased, and White was then and there made Kent's agent to complete the trade; and it was also agreed between them that White should work in the store with Hooker, who was his son-in-law, and should receive for his services all of Kent's half of the profits in excess of 6 per cent. interest on his money invested, to which arrangement Hooker consented; that the trade with Wheeler was thereupon consummated by White as Kent's agent, but in so doing he did not disclose his agency; that White has acted as such agent ever since; that just before October 11th White borrowed of one Bliss $1,000 upon his note, signed by Kent as surety, which money White intended to use in paying for the...