Maynard v. Richards

• Decision Date: 11 May 1897
• Citation: 46 N.E. 1138,166 Ill. 466
• Parties: MAYNARD v. RICHARDS. RICHARDS v. MAYNARD.
• Court: Illinois Supreme Court

166 Ill. 466

46 N.E. 1138

MAYNARD

v.RICHARDS.

RICHARDS

v.MAYNARD.

Supreme Court of Illinois.

May 11, 1897.

Appeal from appellate court, First district.

Suit by Edward S. Richards against Antoinette R. Maynard, executrix of the will of John W. Maynard, deceased, and another, with which certain appeals from the probate court were consolidated. From a decree in favor of defendants, complainant appealed to the appellate court, and, from a judgment therein (61 Ill. App. 336) in part reversing and in part affirming the decree, complainant and defendant executrix appeal to the supreme court. Affirmed.Gardner & McFadon, for Maynard.

F. A. Johnson and William Brown, for Richards.

This is a bill filed in the circuit court of Cook county on May 14, 1895, by Edward S. Richards against Antoinette R. Maynard, executrix of the will of John W. Maynard, deceased, and William A. Gardner, for the purpose of ascertaining the respective interests of said Richards and of the estate of said Maynard in certain moneys recovered by the said Richards as surviving partner of the firm of Richards, Maynard & Co., and for the purpose of determining the amount of compensation, if any, to be awarded said Richards for his services in the recovery of said moneys, and also, in a general way, for the purpose of settling the accounts between the said Richards, as surviving partner of said firm, and the estate of the deceased partner, John W. Maynard. In November, 1894, upon order of the probate court of Cook county, and after citation issued by that court, Richards filed an inventory of the co-partnership property of Richards, Maynard & Co., composed of Edward S. Richards and John W. Maynard,and a list of the liabilities of said firm. In December, 1894, the executrix, Antoinette R. Maynard, filed a petition in the probate court, questioning the correctness of the inventory and account filed by Richards, and the correctness of the charges made by him for compensation, and asking for an order upon him, as surviving partner, to pay over certain balances in his hands, and to fix a time for settlement. In his account so filed in the probate court, Richards had stated that the sum of $15,000 was claimed by William A. Gardner, as attorney, for legal services. Gardner also filed a petition in said probate court alleging his retention by Richards, as surviving partner, in the various litigations of the firm, as hereinafter mentioned, and asking that the matter of his account for services might be determined by the court. The probate court on January 12, 1895, made an order finding that Richards, as surviving partner, was indebted to Gardner in a certain sum for services, and was himself entitled to a certain sum for his own services; also, sustaining objections to certain items in the account of Richards; and further finding that Richards, as surviving partner, had assets in his hands amounting to $107,080.76, and that his liabilities amounted to $39,505.20, and that there was in his hands the sum of $67,575.56 for disposition, one-half of which ($33,787.78) the executrix was entitled to, less the credit of $11,300 which the court had theretofore ordered Richards to pay, and which he had paid, to said executrix. It was thereupon ordered by the probate court that Richards, as surviving partner, pay to said executrix the sum of $22,487.78, the order to have no effect upon the previous order to pay to sum of $11,300; and it was further ordered that said Richards pay to said executrix the sum of $1,278.50, shown to be due to her, by said account, for advances and disbursements, in addition to the foregoing amounts. Richards appealed to the circuit court from the order of the probate court requiring him to pay to the executrix $22,487.78, and also took an appeal from the order requiring him to pay compensation to William A. Gardner out of the estate of said partnership, and also prayed an appeal to the circuit court from the order requiring him to pay said executrix the sum of $1,278.50. The executrix also prayed an appeal to the circuit court from so much of said order of the probate court as allowed Richards, as surviving partner, a credit for the compensation allowed to said William A. Gardner. Afterwards Gardner prayed an appeal to the circuit court from the order made as to his compensation, upon the ground that it was too small. The executrix appealed from the order of the probate court making allowance to said Richards for compensation and for expenses. These several appeals from the probate court to the circuit court were docketed upon the chancery docket of the court. While these appeals were thus pending in the circuit court, Richards filed his bill, as above stated, on May 14, 1895, and moved that the several appeals of himself, the executrix, and Gardner be consolidated with the chancery cause begun by the filing of said bill. An order was accordingly entered making such consolidation. The bill was answered by the executrix and by William A. Gardner. Gardner also filed a cross bill, which was answered by Richards. On July 2, 1895, the court entered a decree in the consolidated causes finding that Richards was not entitled to any compensation for services rendered by him in settling the affairs and litigation of the partnership; that Gardner was entitled to recover from Richards $7,500 for his services as attorney for said firm of Richards, Maynard & Co., and for said Richards as surviving partner of said firm; also, finding that said Richards, as surviving partner, had collected $107,063.36, and had made disbursements amounting to $20,296.77, leaving $86,766.59; also, finding that, after deducting $7,500 due Gardner, there was in the hands of Richards for distribution $79,266.59, one-half of which ($39,633.29) the executrix was entitled to receive, after deducting therefrom $15,292.40 previously paid to her, leaving as the amount due her, after making such deductions, $24,340.89, to which amount the court ordered that there be added interest due on the order of the probate court, amounting to $515.34, making a total to be paid by said surviving partner to said executrix of $24,856.23, and to said Gardner of $7,500. The court thereupon ordered that Richards, the surviving partner, should pay to the executrix $24,856,23, and that she should have execution therefor, and that he pay to Gardner $7,500, and that he have execution therefor, and that Richards pay the costs of the suit. An appeal was taken to the appellate court by Richards from this decree. The appellate court held that Richards was entitled to compensation, and reversed the decree of the circuit court, so far as it allowed the executrix $24,856.23, and affirmed it for $16,713.77. The judgment of the appellate court also affirmed the decree of the circuit court allowing Gardner $7,500, and directed that the costs be equally divided between Richards and the appellee Antoinette R. Maynard, executrix, and that the cause be remanded to the circuit court with directions to deduct the amount of the costs of the executrix, and rendered a decree in her favor for $16,713.77, less one-half of the excess of his costs over hers. The executrix took an appeal from the judgment of the appellate court to this court, so far as said judgment reduced the amount allowed her by the circuit court. Richards also took an appeal from the appellate court to this court. Errors are assigned upon the record by Richards and by the appellant Antoinette R. Maynard, executrix, and cross errors are assigned both by said executrix and by said Richards.

The facts out of which the litigation grows, as shown by the pleading and proofs in the cause, are substantially as follows: On January 2, 1884, Richards owned certain letters patent, and had a contract with the Lake Shore & Michigan Southern Railway Company by which he agreed to transfer grain, etc., and to construct upon land owned by the railway company a transfer house, with hopper scales, to transfer such grain, and he was to receive certain considerations from the railway company for the making of such transfers. He covenanted to construct and maintain for 10 years a transfer house in accordance with his device, and to receive, weigh, and transfer all products delivered thereto with promptness and dispatch. On January 2, 1884, Richards entered into a written contract with John W. Maynard whereby he agreed to assign said contract with the railway company, and a license to use his patented device in the performance of said contract, to the firm of Richards, Maynard & Co., composed of himself and said John W. Maynard. Richards had no means of his own, and Maynard was to furnish the money to construct, maintain, and operate the transfer house. Maynard was to contribute the use of the transfer house-which was built upon ground leased for 10 years from the railway company-to the use of the firm during the period of 10 years, during which the said firm was to perform the contract with the railway company. Each party was to contribute his time, energies, and ability to the prosecution of the business, and to share equally in the profits and losses thereof; and, if death made it necessary, they were to make a full, accurate, and final account of the condition of the partnership, and adjust the same. Accordingly Richards assigned the contract and the license to the firm, and Maynard furnished the money, exceeding $20,000, to construct the transfer house. A more particular statement of the contract between Richards and the railway company will be found in Railway Co. v. Richards, 126 Ill. 448, 18 N. E. 794. On June 16, 1886, the railway company refused to further perform the contract by delivering grain, feed, or seeds to be weighed and transferred, and abandoned the contract. Thereupon, on June 5, 1886, Richards and Maynard, composing the firm of Richards, Maynard & Co., filed a bill against the Lake Shore & Michigan Southern Railway Company for an...