Epping v. Aiken
| Decision Date | 08 January 1884 |
| Parties | EPPING v. AIKEN. |
| Court | Georgia Supreme Court |
September Term, 1883.
1. Where a bill in equity was brought against a firm, and after decree against them, a bill of exceptions was taken in the name of one of the members, it could be amended in this court, from the record, by adding as a plaintiff in error another member of the firm, who was a party defendant in the court below.
2. Where a bill in equity was brought against a partnership consisting of several members, one of them who was not served was not a party to the suit, except in so far as partnership property was concerned, which could be bound by serving either of the other partners. He need not, therefore, be made a party plaintiff in error, but the case may proceed without him.
3. A bill was brought to enforce an account and settlement under the following memorandum of agreement: " I. M. Aiken to receive $4.00 per day for his individual and constant attention to the interests of the Herd's Island mill, in each and every way, particularly, as far as the supply of timber from our booms, the manufacture and shipment of lumber, etc., is concerned, and at the end of the year, say on the 31st day of October, 1873, fifteen per centum of the net profits of the mill to be due and payable to the order of Mrs. I. M. Aiken, in consideration for personalties, etc., in the said mill." By amendment, it was alleged that the real beneficial interest in the fifteen per cent was in the husband, and was so known to be by the defendants, though made payable to the wife's order, and that she had assigned and transferred to him whatever interest she had. It was also alleged that defendant used $800.00 of complainant's money in the mill business:
Held, that there was equity in the bill. This was such a partnership transaction as to give equity concurrent jurisdiction over matters of account growing out of it; and besides, the accounts were necessarily complicated and protracted, and a court of equity could better adjudicate the question than a court of law.
( a. ) If the wife was a necessary party, she could have been made so, if a special demurrer had been filed on that ground; but the allegations of the amendment showed an equity in the husband.
4. Equity, having secured jurisdiction of the parties and the subject-matter, will settle at once all conflicting claims of the partners in the venture, which are connected therewith or equitably bearing upon a just account. Therefore, having jurisdiction to enforce a settlement of net profits due by some of the parties to another, it will also enforce a settlement as to money used by the former in the business and belonging to the latter.
5. Where, in 1870, one member of a firm held a claim against the complainant, and by agreement, the mill then owned by the complainant, and afterwards conducted by the partnership, was sold under a claim against the complainant, and bought by the individual member of the firm, who applied to the payment of his claim the purchase price in excess of what was necessary to settle the fi. fa. in the hands of the sheriff and in 1877, the title so acquired failed on account of a mortgage executed in 1866:
Held, that in 1878 such individual member of the firm could not set up, by cross-bill to a bill brought by complainant against the firm, such claim as an equitable set-off. The demand was stale, and laches concerning it appeared.
( a. ) Could such individual member of the firm have an equitable set-off against the complainant in the bill brought against the firm? Quæ re.
6. There was no error as to the rulings on the facts.
Practice in Supreme Court. Amendment. Equity. Partnership. Contracts. Before Judge ADAMS. McIntosh Superior Court. November Term 1882.
Reported in the decision.
W. S. BASINGER, for plaintiff in error.
LESTER & RAVENEL, for defendant.
The bill which resulted in the controversy made by this record was filed in the superior court of McIntosh county, by Isaac M. Aiken against Epping, Bellas & Co. and Nelson Staples, to recover an amount alleged to be due from the defendants on a memorandum (set out hereafter) in regard to working a mill, known as the Herd's Island mill. A demurrer to this bill was overruled; certain matters of account were referred to an auditor or master; exceptions were taken to his report; and on them the cause was finally heard before Judge Adams, by consent of parties, as judge and jury, on law and facts. His final conclusion and decree in favor of complainant, as well as the judgment of his predecessor on the demurrer, and certain alleged errors of law on the hearing, are excepted to and these make the case now to be reviewed.
1. As the bill of exceptions was first brought, it was in the name alone of Epping, but leave was given to amend it, at the instance of plaintiff in error, so as to join Baars, another of the firm of Epping, Bellas & Co., as co-plaintiff in error, the record showing that he was a party below, having appeared and pleaded to the bill, and therefore the bill of exceptions could lawfully be amended by this record. Code, §§4288, 4272 (b).
2. A motion was then made to dismiss the writ of error because Bellas, the remaining member of the firm, was not joined as plaintiff in error; but as he was not served as a defendant to the bill, and did not appear and plead, and was thus no party to the case tried below, except in so far as partnership property was concerned, which could be bound by serving either of the other partners, the court is of opinion that he need not be made a party plaintiff in error, even if this court had power to make him so, not being one below; and it is our judgment that the case may proceed in his absence as well in this court as it did in the superior court, and the motion of dismiss the writ of error is overruled. The truth is, that it is only a party to the case below who can bring the case here. Code, §4251. Therefore, one not a party there cannot be made one in this court.
3. The memorandum on which the alleged equity of complainant's bill rests is in the following words:
I. M. Aiken to receive $4.00 per day for his individual and constant attention to the interests of the Herd's Island Mill, in each and every way, particularly as far as the supply of timber from our booms, the manufacture and shipment of lumber, etc., is concerned, and at the end of the year, say on the 31st day of October, 1873, fifteen per centum of the net profits of the mill to be due and payable to the order of Mrs. I. M. Aiken, in consideration for personalties, etc., in the said mill.
Epping, Bellas & Co. to give their attention to the best interests of the Herd's Island Mill in each and every way, particularly as far as the purchase of timber for the mill, the selling of lumber, etc., is concerned, and to furnish sufficient means to carry on the business of the said mill; for which they shall be entitled to eighty (80) per centum of the net profits of said mill.
Nelson Staples to receive five (5) per centum of the net profits.
The demurrer is upon the grounds that it appeared by the bill and this exhibit that the right was in the wife of complainant, and not in himself, so far as the recovery of fifteen per cent of net profits was asked; and so far as another demand for eight hundred dollars, which defendants used complainant's money in and about the business of the mill, that the remedy at law was complete; that the bill was multifarious, and as a whole was destitute of equity.
It was overruled on all the grounds except that in respect to the...
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