Oberto v. Moore, 13315.

• Decision Date: 26 June 1933
• Docket Number: 13315.
• Citation: 23 P.2d 578,93 Colo. 93
• Parties: OBERTO v. MOORE.
• Court: Colorado Supreme Court

23 P.2d 578

93 Colo. 93

OBERTO v. MOORE.

No. 13315.

Supreme Court of Colorado, En Banc.

June 26, 1933

Error to District Court, San Miguel County; George W. Bruce, Judge.

Action by John H. Moore against Gio Oberto, his copartner, for the appointment of a receiver of partnership assets. To review orders appointing temporary and permanent receiver, defendant brings error.

Receivership order reversed, with directions.

Burgess & Adams, of Grand Junction, for plaintiff in error.

Bryant & Stubbs, of Montrose, for defendant in error.

BOUCK Justice.

This case is brought here under our rule 18 for review of an order of the district court appointing a receiver.

The plaintiff in error Oberto, defendant below, and the defendant in error Moore, plaintiff below, are the equally interested copartners constituting a partnership which owns extensive mines and mining property in San Miguel and Ouray counties purchased in April, 1927, from the Tomboy Gold Mines Company, Limited. The purchaser was a partnership consisting of Oberto, Moore, and one Tidd. The interest of the last named was later purchased by Oberto.

The three partners had entered on April 27, 1927, into a written partnership agreement, by which the management of the partnership affairs was intrusted to Oberto, who acted as manager from then on. On July 25, 1932, Oberto and Moore entered into another written agreement which contains the following provisions: 'The first party [Oberto] is hereby invested with the care and management of said property, and he shall keep true and just books of account, wherein shall be entered and set down all income and disbursements of every kind relating to the business of this partnership, and second party [Moore] shall have full and free access to said books and papers of the partnership at all times. In the event the second party becomes dissatisfied with the mothod and manner of the care and management of said property by first party the care and management thereof and the keeping of said partnership books shall be delegated to some third person appointed by arbitrators in manner and form as hereinafter set forth. * * * In the event a disagreement arises over the interpretation of any clause in this agreement or over any matter or thing arising out of this agreement, which shall expressly include a disagreement between the parties as to the amount and terms for the sale price of all of said partnership property or lease thereof, such matter or matters shall be referred to three arbitrators, one to be chosen by the first party, one by the second party, and the two so chosen shall select a third person who shall be disinterested, and the decision of such disputed matter submitted to such arbitrators, pursuant to the provisions of chapter 27, sections 314 to 320 inclusive, of the Code of Civil Procedure of Colorado, as set forth in Compiled Laws of Colorado of 1921, it being intended hereby to provide for a statutory and not a common law arbitration.'

The agreement of 1932 expressly provides that the agreement of 1927 should be deemed canceled upon payment by Moore of a certain sum due Oberto as the purchase price of one-half the Tidd interest previously purchased by Oberto. The sum was duly paid, making the two men equal copartners Oberto continued as manager in accordance with the second agreement.

April 19, 1933, Moore filed at Telluride a suit for dissolution of the partnership, for an accounting, and for the appointment of a receiver. On the same day Oberto was served with a summons, to which was attached a copy of the complaint. At the same time he was served with a notice that the plaintiff would call up for hearing Before the district judge in Montrose, about 70 miles away, at 10 a. m. on Friday, April 21, 'his motion, on file herein, for the appointment of a receiver'; which notice stated that the 'plaintiff will rely upon the allegations contained in his complaint on file herein and such oral and documentary evidence as shall be required in support thereof.' No copy of the motion was delivered to Oberto, simply a copy of the notice. The motion, it appears, directly asks that Moore himself be made receiver.

The next morning, April 20, Oberto telephoned his attorneys, who reside in Grand Junction, over 70 miles from Montrose in the opposite direction from Telluride, and reported developments. He had promptly mailed out to them the papers he received. The attorneys immediately mailed a letter to the district judge, telling him of the...