Westgate v. Adams

• Court: Michigan Supreme Court
• Writing for the Court: SHARPE
• Citation: Westgate v. Adams, 293 Mich. 559, 292 N.W. 491 (Mich. 1940)
• Decision Date: 03 June 1940
• Docket Number: No. 97.,97.
• Parties: WESTGATE v. ADAMS et al.

293 Mich. 559

292 N.W. 491

WESTGATE

v.ADAMS et al.

No. 97.

Supreme Court of Michigan.

June 3, 1940.

Suit in equity by Bertha L. Westgate against Lyle R. Adams and another for determination that properties in defendants' possession constituted receivership assets. From a judgment, directing defendants to resume purchasing of gasoline from, and accounting and reporting to, the receiver pursuant to a court order, defendants appeal.

Affirmed.

Appeal from Circuit Court, Kent County; Cornelius Hoffius, judge.

Argued before the Entire Bench.

Michael Garvey, of Grand Rapids, for appellants.

Earl Waring Dunn, of Grand Rapids, for appellee.

Laurence W. Smith, of Grand Rapids, for receiver.

SHARPE, Justice.

November 30, 1938, a decree of divorce was rendered between Bertha L. Westgate as plaintiff and Elmore L. Westgate as defendant. The decree of divorce awarded to plaintiff one-half of defendant's title and interest in the ‘properties, moneys, bank accounts, assets and business known as the Direct Refinery Stations as of August 10, 1937, and subsequent thereto, whether or not said business had continued to be and is now operated under that name, and in the wholesale gasoline business operated in connection with said Direct Refinery Stations or their successors.’ February 3, 1939, Fred G. Timmer of Grand Rapids was appointed receiver of the properties, moneys, bank accounts, gasoline filling stations, rolling equipment, licenses, leases or sub-leases known and operated as the Direct Refinery Stations business. The order appointing the receiver provided that the receiver ‘shall have all the title, and shall exercise, subject to the control of this court and consistently with the provisions of law, all the powers of a general receiver in equity * * * and in addition to the powers hereinbefore conferred, shall have power to operate the regular business of the defendant Elmore L. Westgate, and the Direct Refinery Stations and the wholesale gasoline business operated in connection with the Direct Refinery Stations.’ On February 17, 1939, orders were directed to Leroy Smith and Lyle R. Adams to show cause why the lease under which each held and occupied a gasoline station should not be cancelled, or in lieu thereof each be required to follow the instructions of the receiver and recognize his exclusive control in the operation of such station.

March 15, 1939, an interlocutory order was entered which provided that the receiver would continue the operation of all stations during the period of receivership; and that defendants Adams and Smith together with others should continue to operate their stations under the direction of the receiver. The order also provided, ‘Nothing in this order shall be construed as a final determination of any issue pertaining to title or property claims other than temporary possessory rights.'

By stipulation the order of March 15, 1939, was amended and an order entered April 29, 1939, which provided as follows: that the receiver is to continue the operation of all stations; that during the period of receivership, the defendants and others are to buy from the receiver; and that except for expulsion for failure to buy from the receiver all gasoline and oil and promptly pay for the same, no change in this arrangement shall be made except on petition to the court. Neither Smith or Adams have filed a petition to change the arrangement.

June 9, 1939, the receiver filed a petition for an order to show cause why a writ of assistance should not issue against defendants for failure to comply with the order of March 15 as amended by the consent order of April 29th. The defendants filed separate answers to the order to show cause. Defendant Adams complains of the failure of the receiver to sell gasoline to him at the best price obtainable; and contends that proceedings by...