Riley v. Whittier

• Court: Nebraska Supreme Court
• Writing for the Court: FAWCETT, J.
• Citation: Riley v. Whittier, 100 Neb. 107, 158 N.W. 446 (Neb. 1916)
• Decision Date: 23 June 1916
• Docket Number: 18934
• Parties: LORRIN J. RILEY, APPELLEE AND CROSS-APPELLANT v. WILLIAM E. WHITTIER, APPELLANT AND CROSS-APPELLEE

158 N.W. 446

100 Neb. 107

LORRIN J. RILEY, APPELLEE AND CROSS-APPELLANT v. WILLIAM E. WHITTIER, APPELLANT AND CROSS-APPELLEE

No. 18934

Supreme Court of Nebraska

June 23, 1916

APPEAL from the district court for Dawson county: HANSON M. GRIMES JUDGE. Affirmed as modified.

AFFIRMED AS MODIFIED.

George C. Gillan and T. E. Munson, for appellant.

E. A Cook and Hoagland & Hoagland, contra.

FAWCETT J. MORRISSEY, C. J., and SEDGWICK, J., not sitting.

OPINION

FAWCETT, J.

From a decree of the district court for Dawson county, ordering a partition of the stock and fixtures of a hardware and implement business, in the city of Gothenburg, and stating an account of the interests of the parties therein, defendant appeals, and plaintiff presents a cross-appeal.

February 25, 1913, plaintiff and defendant entered into a contract whereby plaintiff sold to defendant a tract of land in Phillips county, Colorado, the consideration being $ 6,250 and the assumption by defendant of a mortgage of $ 3,750. The consideration of $ 6,250 was to be paid by the transfer to plaintiff of defendant's stock of hardware and implements at Gothenburg. It was known at the time that the stock would invoice more than $ 6,250, and it was provided that defendant should retain possession of the stock until it was reduced to $ 6,250. Plaintiff was to conduct the business. Actual expenses were to be paid out of the receipts, but were not to be charged against defendant's share of the stock. It was also agreed that plaintiff should pay rent upon the building occupied by the stock from April 1, 1913. The stock was not reduced by May 10, 1913, as provided in the original agreement, and the time was extended to May 17, 1913. The stock not having been sufficiently reduced by that time, a controversy between the parties arose, and each attempted to lock the other out of the building. Plaintiff gained possession of the building, and on August 28, 1913, was ousted by injunction, which was subsequently set aside and plaintiff restored to possession. September 8, 1913, defendant obtained exclusive possession in an action of replevin and has since retained such possession. That action was appealed to this court, and, at the present sitting, the judgment was reversed and the action dismissed. Whittier v. Riley, ante, p. 104. June 18, 1914, plaintiff commenced this suit. The petition alleges the facts above narrated, sets out the contract, and prays the court to adjust the equities between the parties and partition the property. The trial court made findings as to the interest of each party, prescribed several methods by which the parties might adjust the matter between themselves, and decreed that, in the event of their failure to adopt any of such methods, J. M. Alexander, as referee, should make a division of the stock in accordance with the findings of the court.

The principal contention of defendant is that the petition does not state a cause of action. The argument is that the contract entered into February 25, 1913, constituted a chattel mortgage and not a partnership, and that partition of the personal property could not be had. From an inspection of the contract and a consideration of the object sought, it is evident that the parties did not intend to enter into the relationship of mortgagor and mortgagee. It is not now necessary to decide what is the correct name for the situation created by the contract. The relation is rather one of a common ownership, in disproportionate shares, of a mass of unlike and unequal property, each party having a right of possession of the whole. The stock originally invoiced $ 15,169.90; $ 11,479.89 at the commencement of the replevin action, and $ 10,112.27 when the present suit was instituted. Joint possession as contemplated by the contract had proved unsatisfactory. Neither party was entitled to the exclusive possession of the property. Under these circumstances partition is a proper remedy. In Pickering v. Moore, 67 N.H. 533, 31 L. R. A. 698, 32 A. 828, it is said: "A tenant in common of personal as well as real property has a right to partition if partition is possible, and, if not, to a regulation of its use equivalent to partition or to a sale. Coke Lit. secs. 164b, 165a; Stoughton v. Leigh, 1 Taunt. (Eng.) 402, 411, 412; Morrill v. Morrill, 5 N.H. 134, 135; Crowell v. Woodbury, 52 N.H. 613. On partition he is entitled to no particular part of the property, but only to his due proportion in value and quality of the whole. When it consists of chattels differing in quality and value, an appraisal of the value and a consideration of the qualities of the several chattels are essential to an assignment to each of his just share. In this case, as in that of a single indivisible chattel, if the parties cannot agree upon the use, sale, or division, judicial intervention is necessary. Until an adjudication of their rights, neither can assert a title in severalty to any portion of the property." This is the general rule. Smith v. Dunn, 27 Ala. 315; Godfrey v. White, 60 Mich. 443, 27 N.W. 593; Tinney v. Stebbins, 28 Barb. (N. Y.) 290; Neal v. Suber, 56 S.C. 298, 33 S.E. 463; 6 Pomeroy, Equity Jurisprudence, sec. 705; Freeman, Cotenancy and Partition (2d ed.) sec. 426.

Barr v. Lamaster, 48 Neb. 114, 66 N.W. 1110, and Phillips v. Dorris, 56 Neb. 293, 76 N.W. 555, relied upon by defendant, relate to partition of real estate, and do not hold that a court of equity cannot, under any circumstances, decree partition of personal property.

Upon the cross-appeal plaintiff contends that the trial court erroneously charged plaintiff with items and credited defendant with other items. A review of the interests of the parties will be less complicated by a consideration of the matter from defendant's standpoint. In the first invoice in March, 1913, the fixtures and stock were appraised at $ 15,169.90. The contract provided that defendant was to keep and retain possession of the stock until enough was sold to reduce the value of the remainder to $ 6,250. Expenses were to be borne by plaintiff, and the business was to be conducted by him. It was further provided that defendant should "receive the difference between the invoice price of the said stock and fixtures and $ 6,250." A fair construction of the contract is that defendant should receive the difference between the invoice value, $ 15,169.90, and $ 6,250, or $ 8,919.90....