Wellman v. North

• Decision Date: 30 June 1926
• Parties: WELLMAN v. NORTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

256 Mass. 496

152 N.E. 886

WELLMAN

v.NORTH.

Supreme Judicial Court of Massachusetts, Suffolk.

June 30, 1926.

Report from Superior Court, Suffolk County; Henry T. Lummus, Judge.

Bill in equity by Arthur G. Wellman against Wayne H. North for dissolution of a partnership, for a receiver, and for accounting, in which Walter S. Thompson, as trustee in bankruptcy of plaintiff, intervened. Interlocutory decree denying intervener's petition to require the receiver of the partnership to turn over assets of the partnership, and case reported. Reversed, and case to stand for further proceedings in the superior court.

W. J. Barry, of Boston, for plaintiff.

W. S. Thompson, of Boston (H. Finn, of Boston, on the brief), for defendant.

PIERCE, J.

In August, 1907, Arthur G. Wellman and Wayne H. North became partners under the firm name and style of North, Wellman & Company, and conducted business thereafter until May 6, 1915, at 161 Devonshire street, Boston, Mass. On May 6, 1915, Wellman filed a bill in equity for the dissolution of the partnership, for the appointment of a receiver, for an accounting, and for such other relief as the court may deem proper or equity may require; and on the same day, after hearing the parties by their respective counsel, the counsel assenting thereto, the court ordered and decreed that one Gilbert E. Kemp be appointed receiver of the property of every nature and kind of or belonging to the partnership.

The decree contained the customary provisions as to the collection of assets; a provision directing the members of the partnership to deliver to the receiver all property, however, described, in their hands, possession, or control, together with all books, deeds, documents, vouchers and papers relating thereto; a provision forbidding the members from in any manner ‘disposing of or encumbering any of the effects or property aforesaid, except to deliver them into the hands of said receiver’; a provision requiring the members and each of them ‘to make, execute, and deliver to said receiver any of the conveyances, instruments, and transfers in writing which he shall reasonably be advised to be necessary or proper to have effectually vested in him any part of the effects or property of said partnership’; a direction to the receiver to wind up the business of the partnership, and, subject to the order of the court, to distribute the partnership assets after payment of all debts. The decree also contained provisions as to proof of claims, the filing of an inventory, and the bond which it required should be given by the receiver before entering upon the performance of his duties.

The receiver named in the decree accepted the office and gave bond. Various claims were proved before August 6, 1915, when the time fixed by decree for proof of claims expired; and many of the assets have been reduced to cash.

On October 29, 1918, the defendant, Wayne H. North, died.

On September 8, 1922, the plaintiff, Wellman, was adjudicated a bankrupt in the District Court of the United States for Massachusetts, and on October 10, 1924, the case being reopened, the present trustee in bankruptcy of his estate, Walter S. Thompson, was appointed and qualified. On December 30, 1924, the referee in bankruptcy authorized and permitted the trustee, Thompson, to intervene as a party plaintiff in the action of Arthur G. Wellman, Plaintiff, v. Wayne H. North, Defendant, now pending in the superior court of Suffolk county. On January 27, 1925, the trustee in bankruptcy of the estate of Arthur G. Wellman filed two petitions in the case in Suffolk county entitled Arthur G. Wellman v. Wayne H. North. The first, a petition for leave to intervene, was allowed by the court. The second sought an order that Gilbert H. Kemp file forthwith his report as receiver, and that he ‘be ordered to turn over and deliver up to your petitioner as trustee in bankruptcy of said plaintiff, Wellman, all estate, assets, property, property rights, funds and all goods and effects of said Wellman, bankrupt, now in his hands and possession, including all the proceeds consisting of cash or property rights, received by him as receiver, from claims, suits at law, executions, or otherwise, in which the said Wellman, bankrupt, had an interest on September 8, 1922, the day when said Wellman filed a voluntary petition in bankruptcy and was adjudicated a bankrupt, reserving only enough to pay his expenses as receiver to the said date and that the said Kemp as receiver in this action be directed and ordered to file forthwith, his account as of the aforesaid date, September 8, 1922.’ The petition ‘for turning over to him of the assets' was denied by an interlocutory decree passed March 31, 1925, and the trustee in bankruptcy appealed therefrom to this court on April 3, 1925.

After the filing of the interlocutory decree the judge of the superior court on April 14, 1925, made certain findings of ‘material facts,’ in addition to the facts set forth in his memorandum of decision and order for decree filed March 11, 1925. These facts ‘in addition’ in substance are that the trustee in bankruptcy of Wellman first filed the suggestion of the death of North in the case of Wellman v. North on December 9, 1024; that the decree on May 7, 191 [5]6, appointing the receiver did not in terms dissolve the partnershipbut the decree itself is be printed as a part of the record on appeal; that the receiver has continued to act as such; that the bankruptcy of the plaintiff was not brought to the attention of the court or the partnership...