Wiggins v. Brand

• Decision Date: 21 May 1909
• Citation: 88 N.E. 840,202 Mass. 141
• Parties: WIGGINS v. BRAND.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

202 Mass. 141

88 N.E. 840

WIGGINS v. BRAND.

Supreme Judicial Court of Massachusetts, Suffolk.

May 21, 1909

COUNSEL

C. S. Wing, for plaintiff.

Chas E. Allen, for respondent.

OPINION

BRALEY J.

The plaintiff having obtained a decree, the case is before us on the defendant's exceptions to the master's report which may be dealt with in the order of presentation. Upon the sale of the firm's business to the American Felt Company, no assets remained except the bills receivable which the defendant took over to collect for the purpose of closing its affairs, accounting, however, to the plaintiff for his share. The partnership, while it had ceased to do business, not having been dissolved, it was the duty of each partner for their mutual benefit to aid in the settlement without compensation. Dunlap v. Watson, 124 Mass 305. But the defendant, moreover, having taken upon himself the duty of liquidation, and there having been no express agreement that he should be paid, must be held to have contributed his services, even if they may have been more onerous because of the litigation which arose in the collection of the outstanding debts. Nor did the plaintiff's request, that he close the accounts and attend to the lawsuits, subject the defendant to any greater burden than he had already voluntarily assumed, or take the case out of the usual rule. Schenkl v. Dana, 118 Mass. 236; Dunlap v. Watson, ubi supra. The master's disallowance of the defendant's claim for extra compensation, and charging him with one-half of the sum he had retained for personal services, and time spent in attending lawsuits and winding up the business, was right. It appears that for some time after the sale the American Felt Company did not assume active control, and the defendant who acted as agent and manager for the vendee continued the business in the name of the partnership, but for the account of the company. Upon adjustment of this account, there remained a balance due from the company to the firm, which the defendant directed should be charged off to profit and loss. The evidence is not reported, but having determined that the defendant failed to account satisfactorily for this amount, the master accordingly held him liable for the plaintiff's share. If, as liquidating partner, he chose to use the name, and ostensibly the firm's money, in carrying on business for the convenience of the succeeding company, in which he alone was interested, and the books of the firm, kept either by him or under his direction, having disclosed an outstanding indebtedness as the result of the transactions, due from a debtor apparently solvent, the business done was the business of the firm, for which the defendant was properly held to be accountable to the plaintiff. Topliff v. Jackson, 12 Gray, 565; Jones v. Dexter, 130 Mass. 380, 39 Am. Rep. 459; Moore v. Rawson, 185 Mass. 264, 275, 70 N.E. 64; Brown's Appeal, 89 Pa. 139. In stating the account, the defendant was required to show that the money received either was available for distribution or had been lawfully disbursed. The report states that, nearly six months after the sale, a check in the name of the firm had been drawn by him covering the amount of the last disputed item in the exceptions. Having ascertained that the firm, even if doing...