Ryman v. Ryman's Ex'rs

• Decision Date: 05 December 1901
• Citation: 100 Va. 20,40 S.E. 96
• Parties: RYMAN v. RYMAN'S EX'RS.
• Court: Virginia Supreme Court

40 S.E. 96

100 Va. 20

RYMAN

v.RYMAN'S EX'RS.

Supreme Court of Appeals of Virginia.

Dec. 5, 1901.

PARTNERSHIP—ABROGATION—EVIDENCE— ACCOUNTING.

1. Where a father and son had been in partnership, the action of the father in refusing to recognize the son as a partner, and permitting him to be threatened with criminal prosecution for using the father's name in a business transaction, was an abrogation of the partnership relation.

2. Where plaintiff sued for an accounting of a partnership alleged to have existed between himself and his deceased father, and claimed that the father was without business qualifications, and that plaintiff was the active partner in exclusive control of the partnership dealings, and, by the terms of the agreement charged with the duty of receiving and disbursing the firm receipts and profits, but was unable to furnish any books or other record of the transactions of the partnership or the condition of its affairs, he was not entitled to an accounting.

Appeal from circuit court, Shenandoah county.

Bill by Lemuel Ryman against the executors of John Ryman, deceased. From a decree in favor of respondents, complainant appeals. Affirmed.

Walton & Walton and E. D. Newman, for appellant.

J. H. Williams, for appellees.

HARRISON, J. John Ryman died August 20. 1897, leaving a will dated August 10, 1897, in the third clause of which he makes the following statement with respect to the estate left by him: "My estate, as I recall it. consists of my home place, where I now reside, being the tract I bought from Aaron Moore shortly after the war, containing one hundred and eighty acres, more or less, and an one-third interest in the Aaron Moore land on Mill creek. I originally owned two interests (²/₃), but one interest I gave to my son Lemuel L. in consideration of his labor and services rendered me. I hold my life estate in the other third, to which my last wife's children will succeed. As to personalty, it consists of bonds and horses, cows, cattle, farming utensils, household property, etc., both at my home place and where my son Lemuel now resides, on the Moore place on Mill creek."

After thus describing his estate, the testator proceeds to dispose of the same by giving:

First. To his daughter Mrs. Funkhouser his home place, where he resided, but charged with $1,000 in favor of his daughter Mrs. Halterman.

Second. He gives to his daughter Mrs. Halterman his interest in the Moore place on Mill creek and the $1,000 charged on the home place.

Third. He gives his son Thomas J. $100.

The fourth clause, in favor of his son Lemuel, is as follows: "To my son Lemuel L. I give and bequeath all my personal property on the said Moore estate, where he now resides, and also one-third part of my personal estate remaining for distribution after my estate shall have been settled up. But this provision of my will is not to take effect as to him (Lemuel L.) in any wise if he shall assert any claim of any kind on any acconut against my estate. Should he do so, his share or portion aforesaid shall be held by my executor for distribution as hereinafter provided. I consider that he has received full share of my estate."

The fifth and last clause disposes of the residue of the estate by dividing it equally between his son Lemuel and his two daughters. "Subject to the provision as to my son Lemuel, in case there should be any claim asserted as aforesaid by him, then the residue of my estate is to go to my two said daughters equally." The executor appointed by this will, after qualifying, proceeded to have the personal property other than that on the Moore farm, which had been given by the will to Lemuel, appraised. The appraisement aggregates $1,439.80, of which $700 represents purchase-money bonds due the testator for an undivided half interest in a tract of land known as the "Whis-sen Tract, " containing 48 acres, owned jointly with his son Lemuel, which undivided interest had been sold by the testator in his lifetime to Isaac Foltz.

This suit was instituted by Lemuel L. Ryman, the son, in October, 1897, less than two months after his father's death, against his father's executor and his sisters and brother, for the purpose of setting up and establishing a partnership between the appellant and John Ryman, deceased, his father, in the business of farming, etc., and to secure a settlement of the alleged partnership affairs, and incidentally to enjoin the sale of certain personal property then advertised for sale by the executor of John Ryman, deceased, which the appellant claimed was the property of the firm, and subject to the terms of the alleged partnership agreement.

The bill alleges that in June, 1885, the father and son formed the alleged partnership upon the following terms: To be used in the conduct of the affairs of the partnership, the father was to contribute the use of his home farm of 180 acres, where he lived, and his two-thirds interest in the Moore farm; and the son was to contribute his one-third interest in the Moore farm, and the personal property, other than household furniture, on both places, at $1,500, claiming that the personalty had been sold to him by his father in settlement of a balance of $1,166.66 due on account of wages earned while in his father's service; that the son was to be the active partner, with exclusive management and control of the affairs of the concern, which was to be run in the name of the son, and the father to be a silent partner; that all the property, real and personal, of each partner, except the household property of each, was to be used in the copartnership, both families supported, and all profits after payment of expenses equally divided; and at the termination of the partnership, which was indefinite in its...