Marvin v. Dutcher

• Decision Date: 05 March 1880
• Citation: 26 Minn. 391
• Parties: R. J. MARVIN, Administrator, and others <I>vs.</I> ELIZA A. DUTCHER.
• Court: Minnesota Supreme Court

Page 391

26 Minn. 391

R. J. MARVIN, Administrator, and others vs. ELIZA A. DUTCHER.

Supreme Court of Minnesota.

March 5, 1880.

Gilbert Dutcher, lessee and sole ostensible proprietor of the Metropolitan Hotel, in St. Paul, died on October 1, 1873. Soon after his death, one of his sons-in law, Edwin R. George, asserted a claim that he and the deceased had been equal copartners in the business of keeping the hotel, and equal owners of the lease, furniture and other property employed in the business. No written agreement of partnership had existed between them, nor had the name of George appeared or been used in the business, which had been carried on in the name of Gilbert Dutcher alone. On October 25, 1873, Eliza A. Dutcher, the widow of the deceased, his son Austin Dutcher, his two daughters and their husbands (George being husband of one of them) entered into an agreement under seal, in which after reciting the claim of George, and that some uncertainty existed as to the extent of his interest in the business and property, the parties thereto covenanted and agreed that George was an equal partner, as he claimed to be, and proceeded to provide for the carrying on of the business, and for paying, out of the proceeds of the business, if sufficient, the debts of the late firm, estimated to amount to $21,000. This agreement, which will be found at length in Delaney v. Dutcher, 23 Minn. 373, was held in that case to create a partnership between the parties to it. After this agreement was made, and on November 15, 1873, Eliza A. Dutcher was appointed administratrix of the estate of her deceased husband. The new partnership continued to carry on the hotel business in the name of E. R. George (who was the active partner and sole manager) down to May 29, 1875. On that day Mrs. Dutcher, as administratrix, served on George a notice in which she stated that, the indebtedness of the late firm having been fully liquidated and paid, she demanded of him, on behalf of the estate of Gilbert Dutcher and the creditors thereof, an immediate account and settlement of the interest of the estate in such firm, as it existed at the date of the death of Gilbert Dutcher, that the same might be sold and distributed amongst the creditors of the deceased. On receipt of this notice, George at once made two general assignments to the same assignee — one of his individual property, for the payment of his individual debts, and one in the name of himself and his copartners, of all the property of the firm of E. R. George, for the benefit of the creditors of that firm — and delivered possession of the hotel, furniture, etc., to the assignee.

On March 18, 1876, Cyrus H. McCormick and others, creditors of the late Gilbert Dutcher, filed their petition in the probate court of Ramsey county, stating the foregoing transactions, and that George never was a partner with Gilbert Dutcher, but that all the hotel property belonged to Dutcher individually, and was worth over $30,000; that the debts proved and allowed against his estate amounted to $21,174.77 of which amount the sum of $13,505.58 was held by the petitioners. They charged that the agreement of October 25, 1873, was made wrongfully and in violation of the rights of the creditors of the estate, and that, to carry out such unlawful agreement, the administratrix, in her inventory of the estate, stated the interest of the deceased in the hotel lease, fixtures, furniture, etc., at no greater than one-half part instead of the whole thereof. They further charged that the administratrix had injured and wasted the estate, and, as a consequence of the partnership, had involved it in expensive litigation, and that, by reason of the matters set forth, she was an unfit person for administratrix, and they prayed that she be removed from her trust, and that some suitable person be appointed in her stead. Mrs. Dutcher, the administratrix, filed her answer to this petition, denying Mr. Dutcher's sole ownership of the hotel property, and alleging that George was an equal partner with him. She also denied or avoided the other matters charged. A hearing was had in the probate court, and on June 14, 1876, an order made in accordance with the prayer of the petition, removing Mrs. Dutcher, and appointing R. J. Marvin, administrator de bonis non. From this order Mrs. Dutcher appealed, on questions of law and fact, to the district court for Ramsey county, and the appeal was there tried before Simons, J., who found, among other things, that Gilbert Dutcher, at the time of his death, was sole owner of the hotel lease, fixtures, furniture and supplies, and not as copartner with George; that no such copartnership existed, and that it did not appear that before or at the time of the death of Mr. Dutcher, George had any interest whatever in such property or in the hotel business. As a conclusion of law, the court found that Mrs. Dutcher was an unsuitable person to discharge the trust of administratrix and ordered judgment that she be removed, and her letters annulled. Judgment was entered against her, pursuant to this order, on November 11, 1876.

Pending the appeal to the district court, and in September 1876, Marvin, the administrator de bonis non, and the same creditors who had petitioned for Mrs. Dutcher's removal, filed separate petitions in the probate court, praying that Mrs. Dutcher be required to render her final account as administratrix. In obedience to a citation issued on these petitions, Mrs. Dutcher filed an account, to the allowance of which the administrator and the creditors objected on the ground (among others) that at the time of his death Mr. Dutcher was the sole owner of the hotel lease, fixtures, furniture and supplies, which were of the aggregate value of more than $60,000, and that Mrs. Dutcher, after she became administratrix, well knowing that Mr. Dutcher at the time of his death was such sole owner of such property, wrongfully converted the same to her own use, and negligently suffered George to convert them to his own use, whereby they became wholly lost to the estate. The administrator and the creditors, therefore, insisted that in the statement of Mrs. Dutcher's accounts, she be charged with the full value of such property, being the sum of $60,000. On the examination of the accounts, and the testimony taken, the probate court held that George was not a copartner with Dutcher, and charged Mrs. Dutcher with the value of the hotel property, and stated her account as follows:

Eliza A. Dutcher, Administratrix, to Estate of Gilbert Dutcher, Deceased, Dr.:

                  To receipts, as per account,   -     -        $16,431.74
                               Contra.                       Cr
                  By disbursements, as allowed by the court,      8,166.46
                                                                __________
                      Balance in favor of estate,  -     -       $8,265.28
                  Add value of assets of Metropolitan Hotel, -   63,037.24
                                                                __________
                      Balance due estate,    -     -    -       $71,302.52
                

From this judgment of the probate court, Mrs. Dutcher appealed to the district court for Ramsey county, on questions both of law and fact. On her application that court ordered that certain specific questions, six in number, be submitted to and tried by a jury. Of these, the fourth only is material to be stated here, and is as follows: "Whether or not the said Gilbert Dutcher and the said Edwin R. George were, at the time of the death of the said Gilbert Dutcher, partners in the business of carrying on the business of said Metropolitan Hotel, and in said hotel assets?"

At the trial of these questions, before Brill, J., and a jury, the principal witness introduced by Mrs. Dutcher to prove such partnership was George himself. His testimony as to conversations and transactions with Mr. Dutcher, and admissions by him, was duly objected and excepted to. The counsel for the administrator and creditors offered, as proof that Dutcher and George were not partners, the record of the above-mentioned proceedings in the probate and district courts, instituted by these same creditors, for the removal of Mrs. Dutcher. The evidence was excluded, and they duly excepted. They also offered to prove by his Honor Judge Simons, of the same court, before whom Mrs. Dutcher's appeal from the order of removal was tried, that the principal subject-matter litigated before him in that appeal was whether or not Dutcher and George had been partners in the business of the Metropolitan Hotel, and offered, in connection with his testimony, the records before excluded. The offer was overruled, and they duly excepted.

The counsel for the administrator and creditors called as a witness one Viele, a boarder at the hotel at and for a long time prior to Mr. Dutcher's death, and asked him when he first heard of any claim on the part of Mr. George that he was interested in that house. The question was excluded on the objection that it was incompetent and immaterial, and they duly excepted.

Prior to his hiring the Metropolitan Hotel, Mr. Dutcher had kept the Revere House in Chicago. George having testified that he was a partner with Mr. Dutcher in carrying on that hotel, the counsel for the administrator and creditors offered the deposition of Leander J. McCormick, one of the owners of that hotel, while it was kept by Dutcher. A statement in his deposition — "I looked on George as a working man there, and never heard of him in any other connection. From what I recollect of him, I would not have trusted him with a ten-dollar bill, and his name would have been of no use in the lease" — was excluded as incompetent and immaterial, and exception duly taken. The following passage from the deposition of one Ostrom, who bought a half interest in the Revere House from Dutcher, was also excluded on the same grounds, and exception was duly taken: "I had a conversation with Mr. Dutcher on the point as to whether or not George was...