Wise v. Nu-Tone Products Co.

• Decision Date: 18 December 1961
• Docket Number: No. 19732,NU-TONE,19732
• Citation: 367 P.2d 346,148 Colo. 574
• Parties: Arthur B. WISE, Jr., Plaintiff in Error, v.PRODUCTS CO., Inc., Defendant in Error.
• Court: Colorado Supreme Court

Page 346

367 P.2d 346

148 Colo. 574

Arthur B. WISE, Jr., Plaintiff in Error, v. NU-TONE PRODUCTS CO., Inc., Defendant in Error.

No. 19732.

Supreme Court of Colorado, In Department.

Dec. 18, 1961.

Rehearing Denied Jan. 8, 1962.

Wm. Hedges Robinson, Jr., George H. Tilton, Jr., Denver, for plaintiff in error.

Williams, Erickson & Brown, Wm. Rann Newcomb, Denver, for defendant in error.

McWILLIAMS, Justice.

As of February 25, 1960 Arthur B. Wise, Jr. and his three sisters, Neva Wise Newcomb, Winifred Wise Page, and Mary Jo Wise Hayes, were doing business as a limited partnership under the trade name of Nu-Tone Products Co., with Wise Jr. being the general partner and his three sisters being limited partners. On that date these four entered into a written contract whereby Wise Jr. agreed to sell and convey to his sisters 'all of his right, title and interest' in this limited partnership, and the sisters promised to pay their brother in exchange therefor the sum of $100,000. Thereafter, the three Wise sisters incorporated under the trade name Nu-Tone Products Co. Inc., and assigned their interest in this written contract to the successor corporation.

The corporation brought the present action against Wise Jr., alleging that although Wise Jr. on or about March 1, 1960 executed and delivered to it a good and sufficient bill of sale conveying his interest in and to the assets of the limited partnership, he nonetheless did not actually deliver all of the assets of the limited partnership which were then in his possession. Specifically, it is alleged that Wise Jr. failed and upon demand has refused to deliver a certain policy of life insurance which had a cash value of $3,358.74, and it is claimed that the cash value of this particular policy was a part of the assets of the limited partnership. It is finally alleged by the corporation that Wise Jr. has been paid $100,000, as provided for by the contract, and it prayed for judgment against him in the amount of $3,358.74.

In his answer Wise Jr. admits the receipt by him of the $100,000 but alleges that he has conveyed all of his interest in the limited partnership. He specifically contends that the particular life insurance policy which is the cause of the present controversy is his personal property, and at no time belonged to the limited partnership or its predecessor.

The corporation took the deposition of Wise Jr., and he in turn took the deposition of the accountant for the limited partnership. Thereupon both the corporation and Wise Jr. moved for a summary judgment, each generally averring as grounds therefor that upon a consideration of the pleadings, the aforementioned depositions and certain documents whose authenticity was conceded, there remained no genuine issue of any material fact and each claimed to be entitled to a favorable summary judgment as a matter of law.

The trial court denied Wise Jr.'s motion for a summary judgment, but granted the corporation's motion, with the comment that the only issue to be resolved was whether the policy of life insurance was an asset of the limited partnership. The trial court concluded that the cash value of this policy was an asset of the limited partnership and accordingly entered judgment for the corporation against Wise Jr. in the amount of $3,358.74, interest and costs. The court dispensed with the necessity of a motion for rehearing of new trial, and by writ of error Wise Jr. seeks reversal of this judgment.

We conclude that the trial court was correct in its disposition of these two motions for summary judgment, but in order to demonstrate the propriety thereof it becomes necessary to relate in some detail the factual background which forms the basis for this regrettable family dispute.

At the outset it should be noted that Wise Jr. does not urge that this judgment be reversed and the case remanded for trial on the grounds that there really is a disputed issue of fact and that the matter cannot properly be resolved under Rule 56, R.C.P. Colo. Rather, he too agrees that there is no genuine issue as to any material fact and that the controversy should properly be resolved by summary judgment. His position, simply stated, is that the trial court erred in failing to grant his motion for summary judgment.

From the record it is learned that as of March 15, 1944 Arthur B. Wise, Sr., and his son, Wise Jr. were doing business as a general partnership under the trade name of 'Nu-Tone Products Company', with Wise Sr. having an 80% interest in this partnership and his son the remaining 20%. On that date Wise Sr. executed a will which provided, in part, that upon his death his 80% interest in this partnership should be divided equally between his son and his three daughters, provided further the bequest to his daughters be conditioned on their entering into a limited partnership with their brother within one year after his death, or within six months after the discharge of his son from military service, whichever occurred first.

On November 12, 1946 Wise Sr. and his son purchased a policy of life insurance in the sum of $10,000, Wise Jr. being the named insured and the beneficiary being designated at follows: '* * * to the beneficiary Arthur B. Wise, Sr., father of the insured, if he survives the insured, otherwise Nu-Tone Products Co. Denver, Colorado, a partnership as constituted at the death of the insured.' It is noted that though Wise Jr. had a wife and children, none of these persons who were natural objects of his bounty was designated as a beneficiary or even as a contingent beneficiary. Rather the beneficiary was Wise Jr.'s partner, and the contingent beneficiary was the partnership 'as constituted at the death of the insured.'

Wise Sr. died on October 12, 1954, with the will theretofore executed on March 15, 1944 as his last will and testament. On March 17, 1955 Wise Jr. and his three sisters entered into a written limited partnership agreement, which by its terms was retroactive to October 15, 1954. In general the contributions made by Wise Jr. and his three sisters to this limited partnership were their respective interests in the general partnership, Wise...