Vetterlein v. Barnes

• Decision Date: 18 December 1880
• Citation: 6 F. 693
• Parties: VETTERLEIN v. BARNES, Assignee, etc.
• Court: U.S. District Court — Southern District of New York

6 F. 693

VETTERLEIN v. BARNES, Assignee, etc.

United States Circuit Court, S.D. New York.

December 18, 1880

Charles F. Blake, for plaintiff.

Henry F. Wing, for defendant.

Saml. B. Clark, Asst. U.S. Dist. Att'y, for the United States a preferred creditor.

CHOATE D.J.

In February, 1871, Theodore H. Vetterlein and Bernard T Vetterlein were adjudicated bankrupts in this court, and in April, 1871, the defendant, Demas Barnes, was duly appointed their assignee in bankruptcy and qualified as such. The bankrupts traded under the firm name of Th. H. Vetterlein &amp Sons, in New York, and under the firm name of Vetterlein &amp Co. in Philadelphia. The original bill in this case was filed in November, 1879. Both plaintiff and defendant are citizens of the state of New York. The bill alleges that the plaintiff was a partner in two other firms preceding the firm of Th. H. Vetterlein & Sons of New York. The first of these was a firm alleged to consist of Theodore H. Vetterlein, one of the bankrupts, B. Vetterlein, Henry Thurman, and the plaintiff, doing business under the firm name of Th. H. & B. Vetterlein & Co., which was dissolved April 30, 1865, in which the plaintiff's interest is claimed to have been, though not so alleged in the bill, from about the year 1862 to April 30, 1864, one-sixth part of Theodore H. Vetterlein's share of the profits, which was 37 1/2 per cent., and from April 30, 1864, to April 30, 1865, one-eighth of the whole profits of the firm. The second of these prior New York firms was one consisting of the two bankrupts and the plaintiff, under the firm name of Th. H. Vetterlein & Sons, which was formed on the dissolution of the earlier firm of Th. H. & B. Vetterlein & Co., and continued to do business until some time in the year 1867, when it was dissolved by the withdrawal of the plaintiff, and thereafter the bankrupt firm was formed and continued the business till the bankruptcy. The plaintiff also claims upon the proofs, though not precisely so stated in the bill, that he was a partner in two prior firms of Vetterlein & Co. of Philadelphia,-- of the first from sometime in January, 1862, to July 6, 1869, when the firm was dissolved by the withdrawal of one of the partners, Charles A. Meniar, the firm consisting of Theodore H. Vetterlein, Charles A. Meniar, and the plaintiff; that upon its dissolution a new firm of the same name was formed, composed of Theodore H. Vetterlein and the plaintiff, which continued the same business till December 31, 1869, when it was dissolved, and a new firm of the same name, composed of the two bankrupts, continued the same business till its dissolution by bankruptcy. The plaintiff's interest in the first of these firms of Vetterlein & Co. is claimed to have been, until January 1, 1866, one-sixth of Theodore H. Vetterlein's share of the profits, which was four-fifths, and after that time 15 per cent. of the entire profits; and his interest in the business of the second firm of Vetterlein & Co. also 15 per cent. of the entire profits.

The bill further alleges that each succeeding firm received the remaining assets of the prior firm as liquidators; that all of each prior firms were solvent upon their dissolution; that there was, as to each of them, something still due to the plaintiff for his share of the profits; that funds or other specific property which constituted part of the assets of each of said prior firms came to the hands of the bankrupts, and that such assets were not entirely liquidated at the time of the bankruptcy; that the bankrupts held the same as liquidators only, and that some part of said assets came to the hands of the defendant, their assignee in bankruptcy; that the defendant, under color of his title as assignee in bankruptcy, upon his appointment in April, 1871, took into his possession all the funds so held by the bankrupts, as liquidators, to administer the same as such assignee; that he has sold some of said assets, and now holds the proceeds thereof; that the defendant has in his possession over $40,000 of such funds so wrongfully collected and appropriated.

The defendant's answer, besides containing a denial of nearly all the averments of the bill, sets up as a defence the two-years' limitation contained in Rev. St. Sec. 5057.

The proofs show that the plaintiff was a partner in the first firm of Vetterlein & Co. from January 1, 1866, till its dissolution July 6, 1869, and also in the second firm of Vetterlein & Co. till its dissolution December 31, 1869, and in the first firm of Th. H. Vetterlein & Sons from its formation May 1, 1865, to its dissolution December 31, 1867, his interest in those firms being the share of the profits of the business stated in the bill. The proof is not sufficient, in my judgment, to show that he was a partner of the firm of Th. H. & B. Vetterlein & Co. The proofs, on the contrary, show very clearly, I think, that he was not a member of that firm, but that, by an agreement between him and his father, Theodore H. Vetterlein, his father promised to give him one-sixth part of his, Theodore H. Vetterlein's, share of the profits from sometime in 1862 down to April 30, 1865. Not only is there no entry whatever in the books of the firm of H. & B. Vetterlein & Co. showing that the plaintiff had any interest therein as a partner, but it appears that the next succeeding firm, Theodore H. Vetterlein & Sons, No. 1, of which the plaintiff was a partner, became the liquidators of the former firm, and received and distributed, in money and other property, a large part of the assets of the late firm of Th. H. & B. Vetterlein & Co. among the partners, exclusive of the plaintiff, and had accounts with that firm and some of its members, which are entirely inconsistent with any right or claim of the plaintiff to be considered a partner in that house. Nor is the proof sufficient to show that the plaintiff was a member of Vetterlein & Co. of Philadelphia prior to January 1, 1866, although by a private agreement with his father he was entitled to receive from him a part of his, the father's, share of the profits prior to that time, and on the first of January, 1866, this share, in accrued profits, was transferred to his account and put into the business by him. The proof is not sufficient to establish the alleged agreement, upon the dissolution of Vetterlein & Co., that the plaintiff should receive all the collections from the assets of that firm which had been charged off to profit and loss until his claim against the firm was paid in full. If any agreement on the subject was made it appeared that it was in writing, and it was not produced, nor was its non-production sufficiently accounted for to admit parol evidence of its contents. The plaintiff failed to prove that there was any balance of profits due to him and still unpaid from any of said prior firms. It is proved that some of what once constituted part of the assets of some or all of the prior firms of which the plaintiff was a member were received by the defendant as assignee of the bankrupts, and have ever since his appointment been held by him as such assignee under the claim that they belonged to the estate of the bankrupts. The books of the prior firms that came into his possession with the assets and books of the bankrupts apparently showed that there was nothing due to the plaintiff, but that, on the contrary, he was indebted to said firms.

On the twenty-seventh of May, 1873, the plaintiff caused the following letter to be sent to the defendant by his agent 'I am instructed by Mr. Theodore J. Vetterlein to require of you an accounting and settlement of his interest in the firms of Vetterlein & Co. and Th. H. Vetterlein & Sons, as existing prior to his withdrawal, the assets of which firms came into your hands as assignee in bankruptcy. In default of your so doing, i am directed to institute legal proceedings to procure the same. ' On the second day of June, 1873, the plaintiff sent the defendant a letter by his agent, as follows: 'Please oblige me by an acknowledgment of my communication of the twenty-seventh ultimo. If you will state to me in your answer the substance of what you asked of me personally some days back, and send to me an order on James K. Hill, Esq., to permit me to examine the books now in his charge, I shall have no hesitation in furnishing you with such further data as you may require. ' On the third day of June, 1873, he wrote to the defendant, through his agent, as follows: 'In reply to your note of this date, in which you say that 'in regard to any claim which you may represent against the Vetterlein estate in bankruptcy it seems to me that the proper course for you to pursue is to present it in the usual way to J. K. Hill,' I have to answer that I do not represent any claim against the estate of the Vetterleins in bankruptcy. The communication which I addressed to you on the twenty-seventh ultimo is explicit, and unless I have the answer asked for I shall be compelled to proceed as therein set forth. ' On the twentieth day of February, 1874, he wrote again to defendant, by his agent, as follows: 'I beg to acknowledge the receipt of your favor of the eighteenth instant, in which you say you prefer to allow all disputed points at issue in the Vetterlein estate to remain in abeyance until the government case is disposed of, etc., and that you hope to hear very soon of some definite result in the United States case, and as you are enjoined from making any payment at present, no loss can accrue to me or to my client by reason of some little further delay. The fact of the pendency of the United States case, and that you are enjoined from making any payments, does not, it seems to me, prevent you from fully considering now the matter in question. That is...