Jones v. Rose
| Decision Date | 23 October 1917 |
| Citation | 81 W.Va. 177 |
| Court | West Virginia Supreme Court |
| Parties | Jones v. Rose |
roneous Decree Cure.
In a suit by one of.two partners against the other to recover half the cost of the equipment for the joint enterprise, furnished and installed by plaintiff, under an agreement that defendant should reimburse him to the extent of one-half the cost, it is error to render a personal decree allowing such recovery, before; ascertainment of the property and liabilities of the firm and a final settlement of its accounts. Nor is the error cured by the subsequent appointment in the same decree of a receiver with authority to convert the social assets into money and apply the proceeds to payment of firm obligations, and a reference to a commissioner to ascertain the debts of tin; partnership and settle its accounts, (p. 178).
Objection, on the ground of prematurity, to a reference of, the cause to a commissioner for a settlement of the partnership accounts comes too late when made for the first time in the appellate court, after the parties, without protest, have appeared and introduced their evidence before the commissioner and the lower court has approved his findings, excepted to only on other grounds, by a decree upon the merits, (p. 178).
Appeal from Circuit Court, Braxton County. Suit by E. C. Jones against L. D. Rose. Decree for plaintiff, and defendant appeals.
Reversed, and cause remanded..
Alex Dxdin and Haymond & Fox, for appellant. Hall Bros, and Hines & Kelly, for appellee.
Lynch, President:
This suit was brought by one of two partners primarily to tain against the other a decree for half the initial cost of equipment necessary to operate a moving picture show, equipment plaintiff agreed to furnish and install at his expense, one half of the total cost of which defendant agreed to repay either out of his individual funds or out of the profits of the joint enterprise. The decree granted the relief prayed, and defendant has brought the ease here for review.
Though conceding that the parties contracted to become associated together upon the conditions stated and to establish and promote the business, defendant denies that plaintiff so far complied with his undertaking as to bring into existence the actual social business relation. But it seems clear they formed and conducted the joint enterprise from July to October, 1914..Jones furnished the machinery, and he and defendant united in its installation, opened the show, participated in the management and promotion thereof, received and applied the proceeds, consulted and advised with each other, and performed or united in the performance of such acts in reference thereto as usually indicate the existence of the social relation between partners.
The defendant assigns as erroneous entry of the order of reference made in the cause on the first day of April, 1915. the ground of objection being that the decree assumed as duly established by proof a fact of vital importance affirmed by the bill and denied by the answer, namely, that the par ties had formed a partnership as contemplated by the agreement between them. While not expressly adjudicating that question, the order does so impliedly, without any proof on that issue. It directed an inquiry to ascertain the property, debts and liabilities of the partnership, and the contributions to its capital, and a statement of an account of the receipts and disbursements in the furtherance of the joint enterprise. To the entry of this order, however, and the performance of the work required, defendant did not object or protest. The parties appeared before the commissioner, introduced their proof, and on it he based the findings approved by the subsequent decree. Nor did defendant except to the report made pursuant to the order on the ground of prematurity of the reference. This participation without objection preclu reliance thereon for the first time upon this review. Der v. Hutton, 48 W. Va. 576.
The principal ground of complaint, the one fatal to we think, is that the decree of July 31, 1916, fixed the amount of the recovery awarded against defendant as due his copartner, before a complete and final adjustment of the social accounts and liabilities. Such, indeed, is the prayer of the bill. It asks for the taking of an account of all the partnership transactions, an ascertainment of the indebtedness of the concern and provision for its payment. The pleading clearly contemplated the necessity for such preliminary investigation before...
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