Park v. Adams.
| Decision Date | 20 March 1934 |
| Docket Number | (No. 7703) |
| Citation | 114 W.Va. 730 |
| Court | West Virginia Supreme Court |
| Parties | Joe R. Park v. Clarendon Adams et al. |
A mining partnership is not terminated by the death of a partner.
A court of equity has jurisdiction to entertain a bill for the dissolution of a mining partnership and for a settlement of accounts between a surviving partner and the estate of a deceased partner, when reason for dissolution appears.
A bill of complaint seeking the dissolution of an existing partnership and alleging sufficient cause therefor is not demurrable for laches.
Error to Circuit Court, Wirt County.
Suit by Joe R. Park against Clarendon Adams and others. To review an adverse decree, the plaintiff brings error.
Reversed and remanded.
T. M. Mclntire, for appellant.
This appeal is prosecuted to a final decree of the circuit court of Wirt County sustaining a demurrer to the bill of complaint of Joe R. Park filed against Clarendon Adams, E. May Ingersol, Jerusha Park, widow of W. Van Park, W. Dana Park, J. E. Boston, justice of the peace of Wirt County, J. A. Kittle, constable of Wirt County, and A. T. Adams.
The bill avers that in 1915, Joe R. Park, the plaintiff, and W. Van Park orally agreed to conduct a partnership for the purpose of drilling, operating, producing and marketing oil and gas from certain real estate owned by them, respectively, in Burning Springs District and Burning Springs Independent District of said county; that the plaintiff agreed to furnish and did furnish $3,000.00 of operating capital which was to be refunded to him by the partnership", and that thereafter the gross proceeds of the firm were to be divided on the basis of one-fourth to plaintiff and three-fourths to W. Van Park, the latter to pay the operating expenses of the firm out of his part of the proceeds; that prior to the first day of January, 1930, the partnership operated extensively under the name of Park Brothers, that all checks were written and signed by the plaintiff in the firm name.
The bill avers that from the date of the formation of the partnership to January 1, 1930, the gross receipts were $40,446.74, all of which was paid out for the personal use of W. Van Park and for the operating expenses of the partnership; that complainant has received no part of the income from said partnership nor has he received the original contribution to its capital of $3,000.00 made by him, and that the amount due and owing to him by reason of his one-fourth distributive share of the gross receipts and the undertaking to return to him the $3,000.00 contributed, amounts in the aggregate to $13,223.37. The bill further avers that from January 1, 1930, to September 12, 1931, the gross income of the partnership was $1,946.32, all of which has been expended and paid out to W. Van Park and for operating expenses of the business.
The bill further complains that plaintiff and W. Van Park agreed that if plaintiff would build a dwelling house, barn and garage on property owned by him, that W. Van Park would occupy the property and pay a reasonable rental therefor; that plaintiff fulfilled his agreement in this respect, but that no rental was paid during the lifetime, nor since the death, of W. Van Park; that fifteen years' rental at $150.00 a year is owing from the estate of W. Van Park to the plaintiff.
The bill further alleges that W. Van Park died January 20, 1930, seized and possessed of certain undivided interests in real estate in "Wirt County, and contains averments showing who the persons are who would be entitled to his estate, and makes all of them parties defendant to the bill. The bill further alleges that W. Van Park at the time of his death was seized of certain personal property; that no administrator has been appointed for his estate, and that the personal estate went into the possession of W. Dana Park, a son, Alice May Park Adams, a daughter, and Clarendon Adams, and that complainant is not advised as to what disposition has been made thereof; that complainant paid the funeral expenses of W. Van Park amounting to $930.98.
The bill of complaint alleges that A. T. Adams, the father of Clarendon Adams, secured a judgment against Clarendon Adams before J. E. Boston, a justice of the peace of Wirt County, and caused an execution for $300.00 and costs to be levied against certain personal property belonging to the partnership of Park Brothers consisting of plaintiff and W. Van Park, and that the property levied on has been advertised for sale. The bill avers that Clarendon Adams, the judgment debtor, has no interest in the property levied upon.
The bill further alleges that W. Van Park was insolvent at the time of his death, and that plaintiff has conducted the partnership business in the hope that the proceeds thereof would eventually pay off the indebtedness of W. Van Park at the time of his death, the exact amount of which is not known to plaintiff; that there is no income from the properties of the partnership. The bill shows that the partnership is largely indebted and without present means of meeting its obligations.
The bill prays (1) for discovery from W. Dana Park and Clarendon Adams as to the property of W. Van Park which came into their hands at the time of his death, and what disposition has been made of it; (2) "hat there may be an order of reference in the cause to take, state and report an account showing the indebtedness of W. Van Park at the time of his death and to whom the same was owing; the real and personal property owned by W. Van Park at the time of his death and what disposition has been made thereof; (3) a settlement of the partnership accounts of Park Brothers showing the total receipts and disbursements of said partnership and the amount due and owing complainant from the partnership, together with the complete report of the properties owned by the firm; (4) the location and...
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