Harner v. Harner
| Decision Date | 22 October 1935 |
| Docket Number | C. C. 538. |
| Citation | 182 S.E. 291,116 W.Va. 530 |
| Parties | HARNER v. HARNER et al. |
| Court | West Virginia Supreme Court |
Submitted September 25, 1935.
Syllabus by the Court.
1. Matter relied upon as res adjudicata is the proper subject of a special plea, and cannot be reached on demurrer when the pleading demurred to fails to show upon its face enough to disclose the existence of such matter.
2. "A bill of complaint seeking the dissolution of an existing partnership and alleging sufficient cause therefor is not demurrable for laches." Park v. Adams, 114 W.Va. 730, Syl. 3, 173 S.E. 785.
3. Under the statute of frauds, oral proof is not admissible to show that land belonging to one partner at the time of the formation of the partnership became a firm asset because of the formation of the partnership.
Certified from Circuit Court, Monongalia County.
Suit by Guy F. Harner against H. James Harner and others. The chancellor overruled defendants' original demurrer, and sustained supplemental demurrer in part and overruled it in part, and certified the rulings for review.
Affirmed.
See also, 177 S.E. 286.
Minter L. Wilson, Kermit R. Mason, and Chas. A. Goodwin, all of Morgantown, and L. Steele Trotter, of Charleston, for plaintiff.
Stewart & Hamstead, of Morgantown, for defendants.
By his original and amended bills of complaint filed in the circuit court of Monongalia county, the plaintiff, Guy F. Harner seeks to dissolve, and procure an accounting of, a partnership alleged to have existed since some time in September, 1916, between him and the defendant, H. James Harner, his father. It is alleged that in September, 1916 Guy F. Harner and H. James Harner verbally agreed to become equal partners in all their dealings, the plaintiff to contribute to the partnership his time, labor, services, and best efforts, and the defendant to contribute the real estate then owned by him known as the H. James Harner farm near Sabraton, Monongalia county, the cash that he then had on hand, amounting to approximately $2,600; the partners agreeing to share equally in the profits and losses in the operation of the farm and all of the coal thereunder, and in all future business transacted by them or by either of them. It is alleged that the partners worked the farm and operated the coal thereunder, and that the proceeds of both operations went into the partnership; that at a time not specifically named, but subsequent to the formation of the partnership plaintiff negotiated a sale of a large tract of coal underlying the farm for which the sum of $50,000 was agreed to be paid, $45,000 of such sum actually being received under the partnership agreement; that the proceeds of the sale of the said coal land were not divided between the partners, but were invested by the defendant, H. James Harner, in government bonds which are more particularly described in the bill. The bill of complaint further alleges that the defendant, William French Hunt, special receiver, has in his possession $35,000 in the government bonds that represent the proceeds from the sale of the copartnership coal land, and in addition thereto government bonds in the amount of $6,000, stock in the Monongahela Building & Loan Association in the amount of $2,600, government postal savings stamps in the amount of $1,800, cash in the amount of approximately $2,500, and divers other properties and securities, all the property of the copartnership. The bill alleges that the total partnership assets amount to approximately $70,000, of which sum, after crediting $4,000 of government bonds received from the copartnership by the plaintiff, the plaintiff is entitled on an accounting to receive $31,000.
The defendant H. James Harner filed his demurrer to the plaintiff's original and amended bills of complaint, raising the following questions:
"(1) The order or mandate entered by the Supreme Court of Appeals of West Virginia, on the 23rd day of October, 1934, in the chancery cause of H. James Harner vs. Guy F. Harner, and L. D. Griffin, Assistant Receiver, etc., constitutes and is an adjudication of all matters alleged in the bill of complaint herein, and all said matters are now res adjudicata.
(2) The contention of plaintiff, as alleged in said bill of complaint, is inconsistent with the position taken, and the defense made by him, in said former suit, as to all which the court will take judicial notice of its own records, as well as in the said Supreme Court of Appeals.
(3) The delay of plaintiff in making any demand for a partnership accounting or settlement, for a period of more than eighteen years after the alleged partnership was entered into, and now pressing such claim against a man more than eighty years of age, constitutes such laches as in law amounts to a complete estoppel, barring plaintiff from further pressing same.
(4) The bonds in question were, according to the allegations of bill all, or practically all, purchased with money received by this defendant H. James Harner from the sale of coal then, and for many years previous thereto, owned individually by him, in which the plaintiff had no interest and could, under the statute of frauds, have acquired an interest, only by a duly executed conveyance or deed; any attempt to create, by verbal agreement, a partnership in real estate, owned individually by one of the parties at time an alleged partnership is entered into, is in violation of said statute, and void and unenforcible.
(5) All matters alleged in an attempt to show a partnership between plaintiff and defendant H. James Harner amount, at the most, to nothing more than a family arrangement which, under all the facts and circumstances alleged and set forth, will not be construed as constituting a partnership; all allegations as to mining and selling coal in the name of H. James Harner & Son, being pursuant to such family arrangement and not to any general partnership between the parties.
(6) The allegations attempting to show a general partnership between the plaintiff and defendant, are so vague and indifferent, and lacking in sufficiency as to details, namely, the manner in which business was to be conducted, the time over which partnership should extend, method of settlements, manner in which losses should be borne and profits divided, compensation to partners or either of them by way of payment for time devoted to business, and otherwise, as to be deemed insufficient in law as a basis for equitable relief.
(7) There are no allegations of the insolvency of defendant, or any attempt or purpose on his part to divest himself of his property, sufficient to support motions for either the appointment of a receiver, or the awarding of an injunction; on the other hand, the allegations of the bill, as to property owned by defendant, negative inference that any grounds exist for such relief."
By his supplemental demurrer, subsequently filed, the defendant made the following points:
"(1) In paragraph three of said original and amended bills of complaint, plaintiff alleges 'that defendant would make plaintiff an equal partner with him in all of the business and business transactions of the said defendant hereafter conducted,' without stating, in any manner or form, the nature or kind of business to be, or intended to be conducted pursuant thereto, is so vague and indefinite that it does not furnish the defendant with any notice of what he is called upon to defend.
(2) In paragraph four of said original and amended bills of complaint, plaintiff alleges that 'the said defendant agreed to contribute the real estate then owned by him' to said partnership, which said contribution, if made as alleged, could only have been legally made by the defendant, by deed or other writing, as required by the statute of frauds.
(3) The same facts alleged in paragraph four of said bills of complaint, are again alleged in substantially the same form namely, that a partnership was created and thereafter existed as to the coal underlying the land owned by H. James Harner, previous to the formation of alleged partnership, and the operating of same, and the right of plaintiff to participate in the profits...
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