Rogers v. McDonald, 24752

• Decision Date: 24 September 1968
• Docket Number: No. 24752,24752
• Citation: 224 Ga. 599,163 S.E.2d 719
• Parties: Marion F. ROGERS, Sr. v. Cecil Mc,DONALD et al.
• Court: Georgia Supreme Court

Page 719

163 S.E.2d 719

224 Ga. 599

Marion F. ROGERS, Sr. v.Cecil Mc,DONALD et al.

No. 24752.

Supreme Court of Georgia.

Sept. 24, 1968.

Syllabus by the Court

1.The determination of the value of the assets of the partnership is a matter to be arrived at on the final trial of the case, and it was erroneous to require the withdrawing partner to make an offer to buy or sell within 30 days from the date of the interlocutory order.

2.It was not an abuse of discretion to refuse to appoint a receiver.

Frank M. Gleason, Rossville, for appellant.

Ernest McDonald, Dalton, Ga., for appellee.

MOBLEY, Justice.

This appeal is from an interlocutory order in an action to dissolve a partnership.Cecil McDonald and Dr. E. B. Quinton brought a complaint against Marion F. Rogers, Sr., alleging that: In 1960, the parties formed a partnership under the name of Ringgold Builders, each partner owning a one-third interest.On June 14, 1966, Rogers demanded of them that the partnership be dissolved and that the financial rights of each partner be determined, pursuant to which they caused calculations of the partnership assets to be made as of June 29, 1966, which calculations are attached as an exhibit.They prayed that the partnership be dissolved as of June 29, 1966; that Rogers be required to either buy or sell according to the partnership agreement under such terms and conditions as will guarantee the seller or sellers complete immunity to further liability in connection therewith; for damages; and for other relief.

Rogers in his answer and counter-claim prayed for an accounting; for a determination of the assets as of the date of the filing of the counter-claim; for the appointment of a receiver; for the 'winding up of the partnership and the distribution of the assets of the partnership between the respective partners'; and for a jury determination of the issues in the case.

The record includes the transcript of six hearings before the trial judge, culminating in an order of April 4, 1968, as follows: '(1)The court is withholding a ruling on the relief sought the plaintiffs for a period of 30 days in view of plaintiffs exhibit #1 introduced in evidence.(2) It is the order of the court that defendant submit to plaintiffs an offer to buy or sell based on value of assets as of April 4, 1968 within 30 days and providing in such offer that if plaintiffs buy defendant will be made safe, and if plaintiffs sell, plaintiffs will be made safe, and as to any liabilities of the partnership.(3) The relief sought by defendants counter-claim is denied.'

Rogers appealed from this order, enumerating as error the requirement that he submit an offer to buy or sell the partnership assets, the denial of a trial by a jury in the determination of the value of the assets of the partnership, and the denial of the appointment of a receiver.

1.Article X of the partnership agreement provides: 'If at anytime any partner desires to withdraw from said partnership for any reason whatsoever, he must first offer his interest to the two remaining partners at a sum equivalent to 33 1/3% of the book value of the partnership.The book value shall be derived and computed by the accounting firm of _ _, and their report shall be binding on all three partners.'

The schedules attached to the complaint, as amended, of McDonald and Quinton were prepared by Boynton, a bookkeeper, with the assistance of Hayes, a real estate agent.It is the contention of McDonald and Quinton that a letter dated June 23, 1966, from counsel for Rogers to counsel for McDonald and Quinton, requested that these calculations be made by Boynton, and that Rogers by this letter designated Boynton to make the compilation contemplated by Article X of the partnership agreement.Rogers emphatically denies that Boynton was designated by him to make an accounting of the assets of the partnership, and insists that this letter merely made a request for information as to the financial condition of the partnership.

This letter requests specified information concerning the partnership assets, and states that, if Mr. Boynton will supply this information immediately, there will be no necessity for an independent auditor, but that Mr. Boynton is a procrastinator, and counsel believes that they should get an independent accountant.Although this letter is somewhat ambiguous, we agree with counsel for Rogers that it does not show a designation by Rogers of an accounting firm to determine the 'book value' of the partnership under the terms of the partnership agreement.No method of dissolution of the partnership is provided by the partnership agreement except that in Article X, and since the parties appear to be unable to reach any agreement, the dissolution of the partnership must be effected in a legal proceeding.

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