Miller v. Justice

• Decision Date: 28 February 1882
• Citation: 86 N.C. 26
• Parties: MILLER and GREEN v. W. T. JUSTICE.
• Court: North Carolina Supreme Court

86 N.C. 26

MILLER and GREEN

v.W. T. JUSTICE.

Supreme Court of North Carolina.

February Term, 1882.

MOTION heard at Special Term, 1881, of BUNCOMBE Superior Court, before McKoy, J.

The defendant appealed.

Messrs. C. A. Moore and H. B. Carter, for plaintiff .

No counsel for defendant .

ASHE, J.

The action in which the motion is made, was brought by the plaintiffs, J. M. Miller and William Green, against W. T. Justice and David P. Welch, to the spring term, 1879, of Buncombe superior court. The parties above named, on the 21st day of August, 1876, entered into a co-partnership in writing to build a saw and grist mill on a certain creek in the county of Buncombe, on a lot of land belonging equally to the parties, without limit to the time of its continuance; each of them by the said articles of co-partnership agreeing to furnish one-fourth of the capital stock, either in money or labor, necessary to complete said mills, and share equally in the profits and losses according to their respective shares.

Welch, not long after the formation of the co-partnership, sold out his interest to J. M. Miller, who thereby became the owner of one-half of the stock of the company.

After commencing work on the mills, the partners soon disagreed about the advancements which each had or should make according to the “articles of partnership,” to carry on the work. From misunderstandings, bad feelings and mutual complaints ensued. The one side charged the other with fraud, keeping false books, applying the partnership property to private uses, and obstructing the other members in the enjoyment of the property; while the latter charged the others with withholding their stipulated contributions to the construction of the mills, and misappropriation of the profits to private purposes. There were criminations and recriminations, and things went from bad to worse until the parties came to blows, and each side charged the other with continued threats of violence. So that a state of things was brought about wholly destructive of that unanimity and consort of action which is so essential to the success of a joint enterprise.

All of which resulted in a dissolution of the co-partnership by the plaintiffs, by their giving to the defendant the following notice, dated February 10th, 1879:

To W. T. Justice: You are hereby notified of our withdrawal from the partnership in the mill property jointly owned by us with yourself. You are also further notified that it is our intention to bring a suit against you for a settlement and winding up our said partnership at the very earliest practicable moment. (Signed J. M. Miller and Wm. Green.)

Very soon thereafter this action was brought and the pleadings alleged the facts substantially as above recited.

The plaintiffs in their complaint prayed that an account might be taken, and that the property might be sold under the direction of the court. The defendant, after recriminations upon the plaintiffs as aforesaid, and denying the charges of keeping false books or other fraudulent practices, consented to an account, and a sale of the property after the account should be taken and the report of the commissioner confirmed.

In pursuance of this consent of parties, His Honor, Judge Shenck, at spring term, 1880, of said court, rendered the following decree: “This action coming on to be heard, and being heard, it is by consent of parties referred to Messrs. A. T. Simmons and J. E. Rankin with power to choose a third person to act with them in case they cannot agree between themselves, to take and state an account of the partnership dealings between the plaintiffs and defendant in this action, and report the same to the next term of this court. That they shall show in their said report the amount due from each to the other, together with what interest each partner has in the partnership property. It is also by consent adjudged and decreed that the land and mills mentioned and described in the pleadings in this action, be sold at public sale at the court house door in the town of Asheville and county aforesaid, after thirty days' advertisement at the said court house door and at three or four other public places, for ten per cent. of the bid in cash, the remainder at six...