Porter v. Long

• Decision Date: 23 March 1904
• Citation: 136 Mich. 150,98 N.W. 990
• Court: Michigan Supreme Court
• Parties: PORTER et al. v. LONG et al.

98 N.W. 990

136 Mich. 150

PORTER et al. v. LONG et al.

Supreme Court of Michigan

March 23, 1904

Appeal from Circuit Court, Kent County, in Chancery; Willis B Perkins, Judge.

Bill for an accounting by Millie C. Porter and others against George Long and another. From a decree for complainants defendant Long appeals. Affirmed.

See 83 N.W. 601.

Crane Norris & Drew, for appellant Long.

Butterfield & Keeney, for appellees.

HOOKER J.

Arthur B. Long, a resident of Pennsylvania, was the owner of large tracts of pine and a sawmill in Michigan. He had also a two-thirds interest in a copartnership lumber business, in which his son George had the remaining one-third interest, the articles of copartnership being in writing. This relation existing, Arthur B. Long entered into a contract on July 9, 1881, with the firm, whereby he allowed the firm to lumber the lands upon its agreement to pay $4 a thousand stumpage for logs. It is claimed, and this court has once found, that this was a contract of great liberality toward the son George. See Porter v. Long, 124 Mich 594, 83 N.W. 601. A month after the execution of the contract Arthur B. Long made his will. Lumbering operations began under this contract about May, 1882, and on December 5, 1882, a contract was made between the same parties for shingle stumpage. George H. Long resided in Michigan, and was active in the management of the copartnership affairs. Arthur B. Long continued to reside in Pennsylvania, where he had large business interests. He died on June 23, 1884. George H. Long carried on the business, as surviving partner, until 1890, in much the same way as it had been conducted before his father's death, and acted also as one of the executors of his father's estate. He made annual reports to the orphans' court in Pennsylvania of the alleged proceeds of the copartnership business, where such proceeds were distributed, and he also filed annual reports in the probate court for Kent county, Mich. In February, 1892, Long, as executor, mortgaged the undivided two-thirds of the mill property in Grand Rapids under an order made by the Kent county probate court. This mortgage was for $2,666.66, and ran to George Long's wife. On the same day he and his said wife mortgaged the other one-third of the property to Mrs. Long's brother for $1,333.34, and the same day it was assigned to Mrs. Long, who paid over to her husband $4,000 for the two mortgages. These mortgages were afterwards foreclosed. George Long's brothers and sisters resisted the foreclosure proceedings, but without avail. The case came to this court, and will be found reported in 118 Mich. 179, 76 N.W. 374, under the title of Long v. Landman. The trial of that cause developed much feeling between George H. Long and his brothers and sisters, and its final disposition was followed by the filing of a bill for accounting; i. e., the bill in this cause. A decree was made settling some of the questions raised, and sending the case to a commissioner to state the account. An appeal was taken, and the case is reported in 124 Mich. 586, 83 N.W. 601. The case has since been to the commissioner, whose report to the circuit court was confirmed in most particulars, and we are asked by defendant George H. Long to review the decree.

The questions to be considered are stated in defendant's brief as follows: '(1) Whether or not the defendant, as surviving partner, is chargeable with the sum of $7,078.70 for additional stumpage, and $8,848.37 interest thereon, or with any sum whatsoever for stumpage, beyond the woods scale of the stumpage, as appears on the books of A. B. Long & Son, and for which he had accounted for before bill filed; (2) whether or not the defendant, as surviving partner, is chargeable with the sum of $24,348.87 for interest upon the sum of $19,200 as part of salary drawn out of the firm, or any sum whatsoever, beyond the sum of $16,775.50, paid into court by the defendant on the 27th day of October, 1900; (3) whether or not the defendant is chargeable with the sum of $108.05 for a duplicate credit for the taxes of 1884, and $114.40 interest thereon, or any sum whatsoever; (4) whether or not the defendant is chargeable with the sum of $45.72 for the additional stumpage value of 114,296 feet of hemlock cut by the defendant on the land of A. B. Long in Millbrook township, but not under the contract of July 9, 1881, and interest on the same, $36.18, or with any sum whatsoever for hemlock stumpage; (5) whether or not the defendant is chargeable with a certain proportion of the rent of the house of A. B. Long situated in Millbrook township, and interest on the same, and the proofs should be again opened to show the rental value, if any; (6) whether or not the estate of Arthur B. Long, deceased, was administered in the probate court for the county of Kent, in the state of Michigan, by the defendant; (7) whether or not the defendant was entitled to his statutory commissions upon the sum of $557,048.27, collected and accounted for by him as executor of the estate of A. B. Long, deceased, in Michigan; (8) whether or not the payment into court by the defendant of the sum of $16.775.50 was not a full payment of the defendant's liabilities to the complainants; (9) whether or not the defendant is chargeable with the bill of Commissioner Brown of the sum of $900 for 45 days' work at $20 per day; and (10) whether or not the defendant is chargeable with all the costs of the accounting.'

Stumpage. A large amount of testimony appears in the record, and an extended discussion is made in the briefs, of the circumstances which, in the absence of satisfactory bookkeeping, are relied on to determine the amount of stumpage chargeable to the firm. We are of the opinion that the evidence fully justifies the conclusion reached by the circuit court that the estate was defrauded through a short scale. It is claimed that the will contemplated an annual distribution of the estate's share of the proceeds of this business, and George H. Long seems to have so construed it, for he claims to have distributed annually the available assets, even to the extent of reducing the same to $134, and making it necessary to mortgage the mill property to provide money to pay taxes and assessments. The sum due the estate for timber not accounted for was converted to other uses--that is to say, it was treated as profits, and divided as such, George Long receiving his one-third as copartner whereas it should have been paid to the executor, and divided, in which case he would have received but one-fifth of said one-third. ...