Reece v. Hoyt

• Decision Date: 30 May 1853
• Citation: 4 Ind. 169
• Parties: Reece v. Hoyt
• Court: Indiana Supreme Court

4 Ind. 169

Reece v. Hoyt

Supreme Court of Indiana

May 30, 1853

APPEAL from the Randolph Circuit Court.

The judgment is affirmed with costs.

T. J Sample, for the plaintiff.

D Kilgore, for the defendant.

OPINION

Perkins J.

Replevin by Thomas W. Reece against Beniah C. Hoyt, for a lot of goods. Pleas, the general issue; property in the defendant; property in the defendant and one Patty, as partners. Replications severally to the second and third pleas, denying that the property was in the defendant, and that it was in the defendant and one Patty, and re-affirming that it was in the plaintiff.

Trial by jury, verdict for the defendant, motion for a new trial overruled, and judgment on the verdict, and for a return of the property.

The evidence is upon the record, and shows that Hoyt and Patty were partners in a clothing store; that Patty sold his interest in it, without Hoyt's consent, to the plaintiff Reece; that Reece demanded to be admitted as a partner in the place of Patty, and that Hoyt refused to admit him; whereupon Reece brought replevin for the stock of goods in Hoyt's hands.

The sale in this case by Patty of his interest in the partnership, was a dissolution of the partnership, as between the partners; and the remaining partner, Hoyt, could not be compelled to receive a stranger as a partner with him for partnership is founded on personal confidence. Coll. on Part., Perk. ed., p. 96, n. 1.

Upon a dissolution of a partnership, the surviving or continuing member of it has a right to the possession of the effects of the concern for the purpose of settling it up; see McDonald v. Beach, 2 Blackf. 55; and that, too, without interference, unless for good cause shown, on the part of such as may have purchased the shares of retiring partners. In the case of McGlesney v. Cox, Phil. Law Reg., vol. 1, p. 34, a court of equity refused an injunction and the appointment of a receiver on the application of such a purchaser, where no cause was shown but the refusal of the continuing members to permit him to interfere in the affairs of the concern. The Court say:

"Whatever may be the rights of a partner upon the dissolution, it is clear that he cannot transfer to a stranger his interest in the partnership, and thereby introduce him into the concern as a partner. (Mason v. Connell, 1 Whar 381.--Cochran v. Perry, 8 W. and S. 262.--Horton's Appeal, 1 Harris 67). Can he, then, by a...