Thompson v. Vinton

• Decision Date: 23 October 1876
• Citation: 121 Mass. 139
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: William Thompson v. Franklin E. Vinton. Same v. John M. Vinton & another

121 Mass. 139

William Thompson v. Franklin E. Vinton.

Same v. John M. Vinton & another

Supreme Court of Massachusetts

October 23, 1876

[Syllabus Material]

Worcester. The first case was replevin of a part of a shaft and head gear of a water wheel.

The second case was tort for breaking and entering the plaintiff's close and removing a water wheel therefrom.

The two cases were tried together in the Superior Court, before Aldrich, J., who reported the cases for the consideration of this court, in substance as follows:

It appeared in evidence that Hiram Purdy was the owner of a tract of land with a mill and mill privilege thereon; that the premises were subject to a mortgage to one James Batcheller, to secure the payment of $ 600, dated October 27 1870, which mortgage was assigned to the plaintiff by an assignment dated October 24, 1872, and recorded; and that on August 5, 1873, the plaintiff made an open and peaceable entry upon the premises to foreclose the mortgage, for condition broken, in the presence of witnesses, a certificate of which entry was made and duly recorded on September 2 1873.

On November 25, 1872, Purdy and Franklin E. Vinton entered into copartnership under articles of agreement, the material parts of which were as follows:

"First. The style of said copartnership shall be Vinton & Purdy and shall continue for the term of five years from the above date, except in case of death of either of the parties within said term.

"Second. The said Vinton and Purdy are the proprietors of the stock as follows: The said Purdy is to furnish all his machinery now in his mill at Saundersdale in said Southbridge--and the said Vinton is to furnish one bobbin lathe and all necessary machinery to run the same in first class order. All which is to be entered up in their stock book, and to remain the property of each partner, and the said partners are to continue to own said stock as above, and all stock that is manufactured to be owned by said partners in equal proportions. And in case of any addition being made to the same by mutual consent, the said partners shall pay for the same equally, and own the same in equal portions.

"Third. All profits which may accrue to said partnership shall be divided, and all losses happening to said firm, whether from bad debts, depreciation of goods, or any other cause or accident, and all expenses of business shall be borne by said parties in the aforesaid proportions of their interest in said stock.

"Ninth. At the expiration of the aforesaid term, or earlier dissolution of the copartnership, the said parties or their legal representatives shall own the machinery that they at present own, and the manufactured stock shall be divided equally.

"Eleventh. This business is to be conducted in the mill of said Purdy at Saundersdale, and said Purdy is to furnish said mill and the power to run the same free from all rent for one year from this date. All necessary repairs to be made by said firm, and at the expiration of one year, if said parties cannot agree as to the amount of rent to be paid per year for the use of said mill and power, it shall be referred to three men to say what the rent is worth, and said parties shall pay said rent in equal proportions for the remaining time they shall occupy said mill."

After the formation of the copartnership they, in contemplation of the proposed manufacture, agreed that they would take out the wheel which was in the mill, it being worn out and of little value, and would put in a new wheel and shaft, and they thereupon procured the wheel and shaft in controversy, and gave their note signed by each partner individually in payment therefor. The wheel was set during the continuance of the copartnership, and both partners worked in setting it. It was put in in January and February, and was connected with the machinery by April 1, 1873. Some of the bobbin machinery was then in the mill and was connected. While the copartnership continued, it was agreed between the partners that the wheel and shaft should be paid for by Vinton, and then he should own and hold them upon the same terms and conditions that he owned...