Johnson v. Townsend

• Decision Date: 08 July 1941
• Docket Number: 13745.
• Citation: 15 S.E.2d 790,192 Ga. 522
• Parties: JOHNSON v. TOWNSEND et al.
• Court: Georgia Supreme Court

15 S.E.2d 790

192 Ga. 522

JOHNSON v. TOWNSEND et al.

No. 13745.

Supreme Court of Georgia

July 8, 1941

Blackshear & Blackshear and Nelson & Nelson, all of Dublin, for plaintiff in error.

E L. Stephens and Lester F. Watson, both of Dublin, for defendants in error.

Syllabus Opinion by the Court.

JENKINS, Justice.

The petition against a father, his two sons as partners with the plaintiff, and a secured creditor, alleged that the plaintiff bought all the personalty, comprising the original partnership assets, from their former owner for $2,500, and they were worth this amount or more; that the plaintiff paid $1,250 cash and the $1,250 balance by notes secured with a retention-of-title contract; that the father bought from the plaintiff an undivided half interest in the business for $1,250, by agreeing to pay and become solely responsible for the $1,250 balance of purchase-money; that the father so agreed with the vendor and indorsed the notes; that under the agreement between the plaintiff and the father, the father's two sons were taken into the business as active partners, with the father as silent partner, all three together owning a one-half interest, and plaintiff a one-half interest; that the sons as partners thus became impliedly bound by acquiring the rights and privileges of the partnership, to pay the $1,250, representing the one-half partnership interest, which the father had expressly agreed to pay; and that none of these defendants ever paid this amount, but procured the fourth defendant, a brother-in-law of the father, to make the payments, which he did, but took an assignment of the retention-of-title contract from the original vendor. The plaintiff prayed for an injunction, receiver, dissolution of the partnership, and a settlement and accounting from the father and sons as to the $1,250 and interest. The defendants admitted their willingness to have the partnership dissolved and a receiver appointed; admitted that there was a partnership between the plaintiff and the sons, the plaintiff owning a one-half and the sons the other half interest, but denied that the father was a partner. They admitted the non-payment of the $1,250 except by the brother-in-law and his taking an assignment of the retention-of-title contract. In their answer the sons 'offered to make a complete accounting' with the plaintiff. The answer of the brother-in-law claimed $1,250 and interest as due him on the contract. The receivers filed a report that they had disbursed all assets, converted into $1,165.34 cash, by paying the expenses of receivership priority debts, and $681.55 to the borther-in-law, after which he filed an amendment acknowledging that it was a payment in full of his debt. The receivers were discharged. At the final hearing the judge refused to submit to the jury any question as to accounting with the plaintiff, and entered a decree dissolving the partnership but dismissing the action. To these rulings the plaintiff excepted. Held:

1. 'A court of equity has jurisdiction in all cases of an accounting and settlement between partners,' where the partnership has not been dissolved. Smith v Hancock, 163 Ga. 222(2, b), 229, 136 S.E. 52; Manry v. Hendricks, 192 Ga. 319, 15 S.E.2d 434; 17 C.J. 1204 § 912. Especially is this true where, as here, the petitioning partner alleges that he was excluded from the activities of the partnership, and prays for dissolution of the partnership, and for injunction and receiver, and where there is no demurrer to the petition, a receivership is granted, and the partnership debts have been paid by the receivers. Hogan v. Walsh, 122 Ga. 283, 50 S.E. 84; 47 C.J. 1154, 1155, §§ 836, 837; 1198, § 900.

2. After payment of the partnership debts, the petitioning partner is entitled to an accounting without the necessity of showing any exact amount as due, if he alleges and shows 'facts sufficient to indicate that something will be found to be due to him'; and he is entitled to a personal money judgment against the indebted partners for such amount as may be shown by the proof....