Horn v. Lupton

• Decision Date: 11 November 1914
• Docket Number: No. 21984.,21984.
• Citation: 182 Ind. 355,106 N.E. 708
• Parties: HORN v. LUPTON et al.
• Court: Indiana Supreme Court

182 Ind. 355

106 N.E. 708

HORN

v.LUPTON et al.

No. 21984.

Supreme Court of Indiana.

Nov. 11, 1914.

Dissenting opinion.

For majority opinion, see 105 N. E. 237.

MYERS, J.

I am not able to view this case in the same light as my Brethren. By section 3 of the act of 1905 (Acts 1905, p. 182), a partnership bank theretofore existing was required after July 1, 1905, to do certain things, under heavy penalty for failure, and, among others, each partner was required to execute and acknowledge a copy of the articles of copartnership. It is found by the court that appellee refused to sign and acknowledge such an instrument, which increased the capital stock to $25,000. This she had a right to decline to do, but it is also found that she refused to continue longer as a partner in the bank. This being true, she had no right to claim damages for the alleged dissolution of the partnership. It is also found that her interest was $5,800 at that time. Under such finding, that was all she was entitled to. She could not be compelled to accept a certificate of deposit found to have been tendered to her, conceding that the finding does not show acceptance by her; but the circumstances and conditions should be viewed in a reasonable light, and I am unable to see what more could have been done than was done, considered as a tender. Conceding, also, that appellee was entitled to a finding that the partnership debts had been paid, we are bound to presume, so far as the findings are concerned, that there was no evidence of the fact.

Conceding, also, that a partner must act in the utmost good faith, the evidence does not show lack of good faith simply because it fails to show that upon a sum carried in another bank only 2 per cent. profit was realized, when ordinarily the bank could loan its funds at 6 per cent. We cannot ignore the fact, known to all, that good banking requires a reserve to be carried; in short, a call loan, when the reserve is carried in some other institution. If it was carried in the bank's vaults, it would earn nothing; if carried elsewhere as a call loan, we are in no position, under the finding, to say that it should have earned more than 2 per cent. and it is found that this per cent. went to make up the undivided profits, and the finding of the court as to the value of appellant's interest includes that item.

It is found that appellant, early in the day of June 30, 1905, after consultation with a lawyer, signed the new articles of copartnership which had been given her by appellees, and delivered them to them. Later in the day she procured the instrument and refused to return it, “and thereafter plaintiff refused to continue longer as a partner in said bank.” It is then found that there was deposited in the bank to plaintiff's credit the sum of $5,800, a certificate of deposit drawn in her name, “which certificate of deposit was handed to the plaintiff by the defendant Lupton, whereupon plaintiff told said defendant Lupton to keep said certificate, and that, if she wanted it, she would call for it.” The certificate was placed in the bank for her use, and the money represented by it has at all times since been subject to her order. I think a fair construction of the words “handed to,” taken with the other facts found, and the fact that they were brother and sister, is synonymous with delivery. But in any event, whether it was a delivery or not, it was a tender, and that was sufficient, coupled with her refusal further to continue in the partnership.

As respects the failure of the finding to show that the debts of the former partnership were paid, it is to be observed that as it is found that appellant refused to continue in the partnership, which amounted to dissolution, when assented to by the other partners, and that the new partnership took over the property and assets of the old partnership, and assumed all liabilities, etc., taken with the finding of a tender of the amount due appellant, it was immaterial that the finding was not made that the indebtedness had been paid, because she was not entitled to be paid while there were debts due, and amounts to the same thing as a finding that the indebtedness had been paid, and could make no difference in this case.

There was evidence of a tender of the certificate, and as to the only item of profit sought to be presented, as not having been allowed, 27 different instances by way of example are shown, in which the deposits in the Hartford City Bank averaged $112,000, the cash in the Pennville Bank averaged $40,000, and the average deposit in the Hartford City Bank of $16,500, and that it was a call loan, and the evidence shows that on call loans the rate of interest was 2 per cent. and on time 3 per cent. It is not shown that any loan was ever denied at the Pennville Bank on account of lack of funds, and no complaint is made of the interest received on call loans on daily balances, except in the Hartford City Bank, and yet during the whole time large sums, sometimes equal to or greater, are shown to have been carried as call loans in other banks, the interest on which was 2 per cent. on the daily balances, thus showing a uniform procedure, together with evidence that that was the rate on call loans, and to my mind rebuts any claim of improper use of funds in the Hartford City Bank, in addition to the showing made by appellant that the same practice followed after the organization of the new copartnership. We cannot overlook the fact either of the proximity of Hartford City to Pennville, and the population of each, the possibly greater security in the former, coupled with the readiness of access and communication as a possible factor in the matter.

It is pointed out that there was no plea of tender, and the answer is general denial only. It is decided, and I think correctly, that it is an action in equity for an accounting. The tender of the certificate of deposit was either accepted or refused, and where, as is found, the certificate for the amount tendered has at all times been subject to the order and control of appellant, and no more than the amount tendered is found due, appellant in...