Obel v. Henshaw, 60-575
| Decision Date | 12 June 1961 |
| Docket Number | No. 60-575,60-575 |
| Citation | 130 So.2d 892 |
| Parties | Leo OBEL, Appellant v. Donald M. HENSHAW, doing business as Southeastern Pool Equipment Company, and June Henshaw, his wife, Appellees. |
| Court | Florida District Court of Appeals |
Faunce, Fink & Forman and Ralph E. Stayer, Miami, for appellant.
Gerald E. Vick, No. Miami, and S. J. Courshon, Miami, for appellees.
The plaintiff in an action for a dissolution of a partnership appeals from a final decree which awarded the partnership assets to the defendants and directed that the defendants pay to the plaintiff a certain sum of money representing the plaintiff's share of the business. The plaintiff assigns error in that the decree, by the award of the assets to one partner favored the defendants over the plaintiff, despite a finding that the equities were with the plaintiff. The decree must be reversed upon authority of Wiese v. Wiese, Fla.App.1958, 107 So.2d 208, 211.
The paragraph of the decree containing the award of the assets is as follows:
In Wiese v. Wiese, supra, the chancellor placed a value upon the assets of a partnership and then required defendants to pay plaintiff one half of such value. The decree also gave plaintiff a lien against defendants' real property to secure such payment. The District Court of Appeal stated "The general rule is that, upon dissolution of a partnership, it is the right of each [of the partners] to have the [partnership] property converted into money by a sale': Kelley v. Shary, 206 Pa. 208, 55 A. 925, 927.'
In the Wiese opinion the court held that if, under the circumstances of that case, the chancellor should determine that a distribution in kind rather than a sale would be to the parties' advantage, such distribution was permissible. 68 C.J.S. Partnership § 388. Under the law as enunciated in that opinion it was error for the chancellor in this cause to determine that one partner should remain the owner of the partnership assets and give to the other partner only a judgment for his interest in the partnership business.
In addition to appellant's objections to the inadequacy of the relief afforded him upon his complaint for dissolution of the partnership, he has assigned certain procedural rulings as error. After the chancellor determined in an interlocutory decree that the plaintiff was entitled to the relief prayed, he ordered:
This order was made pursuant to Rule 3.14(b), Florida Rules of Civil Procedure, 31 F.S.A., which provides as follows:
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...in the final accounting, pursuant to the above procedure. Ellison v. Goldstein, 154 So.2d 202 (Fla. 3d DCA 1963); Obel v. Henshaw, 130 So.2d 892 (Fla. 3d DCA 1961); Wiese v. Wiese, supra; 68 C.J.S., Partnership, § 384; see section 620.755, Florida Statutes In this case the partnership debts......
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...(Fla. 3d DCA), rev. denied, 479 So.2d 118 (Fla.1985); Fenick v. Robertson, 406 So.2d 1263, 1264 (Fla. 4th DCA 1981); Obel v. Henshaw, 130 So.2d 892, 894 (Fla. 3d DCA 1961). * Judge BARKDULL did not hear oral argument, but participated in the decision. ...
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