« ForrigeFortsett »
in the absence of any reason to suspect him, 6. Partnership On 277–Partnership continues of some impropriety. Their response to the
until affairs are wound up. notice from the committee of the Bar Asso Dissolution of partnership by act of partciation, promising to observe the require ners is not its termination; it continuing until ments of the canons, and their subsequent winding up of partnership affairs is completed. faithful observance of them, together with 7. Partnership Em 300—Retention by each parttheir prompt adjustment of the civil liability ner of firm's assets held pro tanto division arising out of the wrongful act of their em thereof, and each should be charged for such ployee, must also be taken into considera portion and account therefor. tion, and their conduct as shown by this Where at time of dissolution of partnerrecord does not indicate a lack of the hon-ship each' partner had in his hands and reesty, good moral character, or professional | tained portions of assets, and neither destandards which requires the forfeiture of manded settlement and division of assets for their licenses to practice law.
three years after dissolution, equity requires
that court regard what each retained as diviThe rule will be discharged,
sion pro tanto, and that each be charged with Rule discharged.
sum so retained and account for such portion.
Appeal from Superior Court, Cook Coun(313 Ill. 499)
ty; Charles M. Foell, Judge. THANOS v. THANOS. (No. 15636.) Suit by William Thanos against Nick (Supreme Court of Illinois. Oct. 28, 1924.) Thanos. Decree for plaintiff and defendant
appeals. Reversed and remanded. 1. Trusts em 110-Constructive trust established only by clear and convincing proof.
McInerney & Power and Thomas B. Lan
try, all of Chicago, for appellant. One claiming benefit of constructive trust must establish it by clear and convincing proof;
David K. Tone, of Chicago, for appellee. doubtful evidence, or evidence capable of explanation on theories other than existence of THOMPSON, J. In 1903 the parties to trust, not being sufficient.
this litigation, who are brothers, engaged in 2. Trusts w110Decree declaring trust held the business of buying, selling, and operatunsupported by clear and convincing evidence. ing restaurants in the city of Chicago. Dur
Decree declaring constructive trust for ing the existence of the partnership they plaintiff in property purchased by defendant owned and operated at different times ten from funds of firm held not supported by clear restaurants. Appellant managed some of and convincing proof and against weight of these and appellee the others. From time to evidence.
time they had an accounting and each part3. Partnership cw 96—Partner could secure fee ner took his share of the profits. March 1, to premises leased to partnership.
1919, they had disposed of all but two of The fact that the lease on a building and
their restaurants. Of the two, the one at the right of a partnership to renew the lease 203 East Thirty-First street was managed were partnership assets did not affect the right by appellee, and the one at 3905 Cottage of one partner to secure and hold as his in- Grove avenue by appellant. March 27 they dividual property the fee to the leased premises. stated an account of their restaurant busi4. Partnership ww96-Realty purchased by one 1919, and found that there was a profit of
ness covering all transactions up to March 1, partner not necessarily "partnership property."
$31,487.98. Each partner took his share of The mere fact that plaintiff and defendant the profits and the partnership was continuwere partners in the restaurant business did ed. June 1 appellee sold the restaurant at not make real estate purchased by one of them 203 East Thirty-First street and retained the partnership property, but to make it “partner- $7,500 received from the sale. Thereafter he ship property” it must have been purchased withdrew from the restaurant business and with partnership funds for partnership pur: engaged in the bakery business and in the poses, or at least there must have been one of real estate business. Appellant continued to such elements present.
conduct the restaurant at 3905 Cottage Grove [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Part- the building in which it is conducted that
It is concerning this restaurant and nership Property.)
this litigation arises. 5. Partnership ww2591/2, 263—Declaration of August 14, 1922, William Thanos, appellee,
termination or withdrawal of partner dis- filed his bill in the superior court of Cook solves partnership for indefinite term.
county, asking for a dissolution of the partUnder Uniform Partnership Act, $$ 29, 31, nership existing between him and Nick Tha-, where no definite term fixed life of partnership nos, appellant, and for an accounting. After and no particular undertaking was specified which required its continuance, either act of setting forth the formation and continuance one partner in declaring partnership termi- of the partnership, the bill alleges that the nated, or act of the other partner in with restaurant at 3905 Cottage Grove avenue is drawing therefrom, was in fact dissolution. now, and has at all times since its establish
em For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
(145 N.E.) ment been, operated by the partnership;, troversy arose between the partners by reathat appellee is the owner of a one-half in- son of this real estate transaction and denies terest in said restaurant; that early in 1919 that he ordered appellee to leave the premnegotiations were opened for the purchase, ises. He denies that he agreed to conduct for the benefit of the partnership, of the the restaurant as partnership property and building in which the restaurant was being to account for the profits, and denies that apconducted; that the building was purchased pellee has ever requested or demanded that for the sum of $14,750; that there was paid he render an account of the partnership busiout of the partnership funds the sum of $6,- ness. He denies that the partnership has ex750 in cash in consideration of the purchase isted since July 1, 1919, or that appellee is of the premises; that the balance of the pur- entitled to any profits in the business since chase price was paid by assuming and agree that date. He admits that appellee is entiing to pay an incumbrance of $8,000 then ex- | tled to his share of the profits of the business isting against the premises; that it was between March 1 and July 1, 1919. He says agreed between appellee and appellant that that appellee sold the partnership business title to the premises should be taken by at 203 East Thirty-First street for the sum them jointly; that appellant secretly, and of $7,500 and that none of said sum has been without the knowledge and consent of ap- paid over to appellant. He avers that appel. pellee caused the deed to be taken in his lee has invested said funds at a profit, and name; that appellee protested as soon as he that, though repeatedly requested, he has learned the facts, and appellant assured him continually failed and refused to account for that he would hold the title for the benefit appellant's share of the same. He avers of the partnership; that appellee was not that at the time of entering into the partnersatisfied with this arrangement and insisted ship agreement each party agreed to devote that the title to the premises be taken in the all his time, energy, and experience toward names of both of them; that appellant was the promotion of the partnership business angered by the demands of appellee and be and each of the partners did devote all his came abusive; that appellant ordered appel- time and skill to the business until July 1, lee from the premises and told him not to re- 1919, when complainant voluntarily left the turn; that appellant declared that he would business and refused to longer carry out the operate the business at 3905 Cottage Grove purposes of the partnership. He avers that avenue for the benefit of the partnership and he has at all times been ready and willing would account to appellee from time to time to render an account of the portion of the for the profits; that appellant has continued partnership profits due appellee, but that apto operate the restaurant and has collected pellee has at all times refused to account for and retained all the moneys derived from the partnership property held by him. such operation; that appellant has failed There was a hearing before the chancellor and refused to render an account of the part and a decree entered finding that the partnership business and to pay over to appellee nership was still in existence; that the buildany portion of the profits to which he is en ing at 3905 Cottage Grove avenue was a part titled.
of the partnership assets; that the restauAppellant filed his answer, admitting that rant being conducted at that location was a the partnership was created in 1903 and that partnership business. The decree directed it continued to July 1, 1919. He avers that that appellant account to appellee for his on said last-mentioned date it was dissolved share of the profits and referred the cause by the withdrawal therefrom of appellee. He to a master to state the account. From that denies that the restaurant at 3905 Cottage decree, this appeal is prosecuted. Grove avenue is now being conducted as a This suit is based upon the claim that the partnership business, and alleges that, since building at 3905 Cottage Grove avenue is the 1st of June, 1919, it has been operated by partnership property and that appellant him as his individual business. He denies that holds the same as trustee for the benefit of in 1919 he and appellee entered into negotia- the partnership. There is no allegation in the tions for the purchase, for the benefit of the bill nor evidence in the record which justifies partnership, of the premises at 3905 Cottage the claim that an express trust was created Grove avenue, and avers that said premises by the act of the parties or that a resulting were bought by him with his own money, aft- trust arose from the conduct of appellant. er appellee had refused to join him in the The theory of the bill is that appellant fraudpurchase of the property. He denies that ulently, and without the knowledge or conany part of the purchase money was taken sent of appellee, purchased in his individual from the partnership funds, and that appel- name the building necessary to the successful lee has now, or ever had, any interest in said operation of the partnership restaurant and premises. He denies that appellee ever de-paid for the same with partnership funds, manded that the premises be purchased in and that equity should raise a constructive their joint names, and avers that he offered trust in favor of the partnership for the to convey to appellee a half interest in the purpose of working out right and justice. premises if appellee would pay his share of  The law is well settled that one claimthe purchase price. He denies that any con- ing the benefit of a constructive trust must
establish it by clear and convincing proof., building and the right of the partnership to If the evidence is doubtful or capable of rea- renew the same are partnership assets, this sonable explanation upon theories other than does not affect the right of appellant to se the existence of the trust, it is not sufficient cure and hold as his individual property the to support a decree declaring and enforcing fee to the premises. The mere fact that apthe trust. This rule was established for the pellant and appellee were partners in the purpose of stabilizing real estate titles. The restaurant business did not make real estate policy of the law is that all titles to real es- purchased by one of them partnership prop tate shall be evidenced by writing, and erty. To make the building partnership propwherever the courts have permitted title to erty it must have been purchased with partbe established by parol evidence, they have nership funds for partnership purposes, or always been careful to examine every cir- at least there must have been one of such elecumstance which might affect the probability ments present. Blakeslee v. Blakeslee, 265 of the alleged claim and have refused to Ill. 48, 106 N. E. 470; Robinson Bank y. grant relief where the claim was not sup- Miller, 153 Ill. 244, 38 N. E. 1078, 27 L. R. A. ported by proof unequivocal and free from 449; Alkire v. Kahle, 123 Ill. 496, 17 N. E. reasonable doubt. Winkelman v. Winkel. 693, 5 Am. St. Rep. 540. man, 307 Ill. 249, 138 N. E. 637; Streeter v. Appellant testifies that prior to July 1, Gamble, 298 Ill. 332, 131 N. E. 589, 23 A. L. 1919, appellee withdrew from the partnerR. 1485.
ship business of buying, selling, and operatThe evidence in this record is not of that ing restaurants and engaged in other busicharacter. The testimony of appellee in sup- ness; that he did not thereafter devote any port of his bill is unsatisfactory and in time or skill to the business of the partnermany instances contradictory. His story is ship and thereby violated the partnership in conflict with the story told by appellant. agreement, and that by reason of appellee's While there is in the record testimony of withdrawal from the partnership and his vithree witnesses which in a measure corrobo- olation of the partnership agreement the rates the story of appellee, appellant's story partnership was dissolved. Appellee testifies is just as strongly corroborated by an equal that he did not voluntarily withdraw from number of witnesses. These disinterested the partnership business of operating restauwitnesses do not throw much light on the rants; that a controversy arose between the real issue, because practically all the conver- partners concerning the real estate transacsations between the parties concerning this lion in question, and that appellant ordered property were in private. It will serve no appellee from the premises and told him that useful purpose to recite in detail the testi- his services were no longer needed or desirmony in this record. It is sufficient to say ed; that this controversy occurred some time that appellee's testimony is in harmony with in the month of July, 1919, and that therethe allegations of his bill and appellant's tes after he engaged in the bakery business and timony supports his answer. Briefly, appel- in the real estate business. Whichever view lee says that the partners agreed to buy the is taken of the case, the partnership was disreal estate in question, and appellant, who solved some time between June 1 and August was conducting the business for the part. 1, 1919. We are not able from this record to nership, fraudulently took title in his own definitely establish the date. Section 29 of name, while appellant says that he proposed the Uniform Partnership Act (Smith-Hurd's to appellee that they buy the property as Rev. St. c. 10642) provides that “the disso partners and that appellee refused to join lution of a partnership is the change in the him in the purchase and stated that he did relation of the partners caused by any partnot want to own any real estate on the South ner ceasing to be associated in the carrying Side because of the increasing negro popula- on as distinguished from the winding up of tion. He says further, and he is corroborated the business." Section 31 provides that this in this statement by appellee and other wit- dissolution is caused by the express will of nesses, that he offered several times to trans- one of the partners when no definite term or fer to appellee a half interest in the premises particular undertaking is specified. Such if he would pay his half of the purchase was the situation in this case. There was price, but that he refused to accept his offer. no definite term fixed for the life of the part
[2-4] While we recognize the general rule nership and no particular undertaking was respecting the finding of a chancellor on specified which required the continuance of conflicting evidence, we must hold in this the partnership to complete the undertaking. case that the decree entered is not supported [5-7] Either the act of appellant in declarby clear and convincing proof and is against ing the partnership terminated or the act of the manifest weight of the evidence. The appellee in withdrawing from the partnerevidence shows that this property was not ship business was in fact and in law a disbought with partnership funds, but that the solution of the same. Blake v. Sweeting, 121 purchase price was paid by appellant from II. 67, 12 N. E. 67. Such dissolution of the private funds which had been set aside to partnership was not, however, its terminahim as his share of the profits from the part-tion. It continues until the winding up of nership business. While the lease on this partnership affairs is completed. In a court
(146 N.E.) of equity a partner who, after the dissolu-, tuted by the wife, where it appears that such tion of the partnership, carries on the busi- wife has not sufficient means of her own to ness with the partnership property is liable, make a defense. at the election of the other partner, to ac
2. Continuance 7-Granting or refusing discount for the profits thereof, subject to prop
cretionary. er allowances. Karrick v. Hannaman, 168 U. S. 328, 18 S. Ct. 135, 42 L. Ed. 484. In continuance rests in the sound discretion of the
The granting or refusing of a motion for winding up a partnership, however, a court of trial court. equity will take into consideration all the facts and circumstances surrounding the dis- 3. Divorce 214(4) Granting of alimony solution of the partnership.
pendente lite not reversible because of ab. In this case, when the partnership was sence of husband from hearing on motion. dissolved about July 1, 1919, each partner
The granting of a motion for alimony penhad in his hands and retained a portion of dente lite in favor of the wife, of which notice the assets of the firm. Each having retained is duly given to the attorney of record for the a portion of the firm assets, it would be in- husband, in a divorce suit brought by the husequitable to require appellant to account for band, the amount of the said alimony granted
not being under the facts excessive nor un. profits and permit appellee to use a part of reasonable, is not reversible because of the the firm capital in other business and to absence of the husband at the hearing upon the render no account for its use. Appellee has motion. used in his business, since the dissolution, the firm money retained by him, and having Error 'to Court of Appeals, Lorain County. used it in other business it will probably be
Action by F. W. Norton against Regina impracticable to trace it and ascertain the
Norton. Judgment for temporary alimony profits or accumulations he has derived from its use. As each retained a portion of the for defendant was reversed by the Court of firm assets and neither demanded a settle. Appeals, and the case comes to the Supreme ment of the business of the firm and a divi. Court on granting of motion to certifs record. sion of the assets for a period of three years
Judgment of Court of Appeals reversed.—[By
Editorial Staff.] after the dissolution of the partnership, principles of equity and justice require that the The plaintiff in error, Regina Norton, some court regard what each retained as a divi- time in 1921, sued the defendant in error F. sion pro tanto and that each be charged with W. Norton, for alimony in Lucas county, the sum so retained and account for the Ohio. A decree was entered awarding aliportion in his hands. Ligare v. Peacock, 109 mony to plaintiff in error, and all payments Ill. 94. The evidence in the record is not required by the decree were paid prior to sufficiently clear for us to specifically direct January 1, 1922. how the account shall be stated, but the On the 20th day of December, 1921, the rules for stating such accounts between part defendant in error filed his petition for diners are sufficiently well settled and recog- | vorce against plaintiff in error in the court nized that it would seem specific directions of common pleas of Lorain county, Ohio. are not required.
On the 5th day of June, 1923, plaintiff in The decree is reversed, and the cause is error filed a motion asking for temporary remanded to the superior court of Cook coun- alimony, due notice of which was served on ty for further proceedings in harmony with defendant in error's attorney by copy upon views herein expressed.
June 2, 1923. Reversed and remanded.
Said motion came on for hearing on the 9th day of June, 1923, defendant in error being himself absent, but being represented
by counsel at said hearing. Defendant in NORTON V. NORTON. (No. 18275.) error's counsel moved for a continuance,
which was denied. The following order was (Supreme Court of Ohio. Oct. 7, 1924.)
made upon the same day by the court of (Syllabus by the Court.)
common. pleas and entered on the journal: 1. Divorce On 213—Judgment in suit for ali. "The motion by the defendant for an allow
mony held no bar to application by wife, de ance of alimony, of which due notice has been fendant in divorce suit, for alimony pendente given, is heard and granted, and it is ordered lite.
that the plaintiff pay to the defendant the sum A judgment for alimony rendered in an ac
of fifteen dollars ($15.00) per week for the tion solely for permanent alimony brought by maintenance of herself during the pendency of the wife, which judgment is fully satisfied, does this action, and that said payments be continued pot bar an application for alimony pendente on Saturday of each week until modified by the lite made by the wife for the purpose of ob- further order of this court." taining funds with which to enable her to make a defense in a suit for divorce brought by the
On the 28th day of June, 1923, defendant husband subsequent to the alimony suit insti- ( in error filed his motion for a new trial,
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
assigning among other grounds the follow Third. Upon the ground that the court of ing:
common pleas erred in overruling the motion “That the property rights between the parties of defendant in error for a new trial. We have heretofore been adjusted by a court of shall consider these 'assignments of error in competent jurisdiction."
 An application for a continuance at On the 3d day of July, 1923, plaintiff in the hearing of the motion for temporary error filed her motion to strike from the files alimony was made by the husband's attorney the motion for a new trial for the reason
upon Saturday, June 9, 1923, in the followthat it had not been filed within three days ing words: from the rendition of the judgment above
Mr. Resek: "At this moment we would ask set forth. This motion was later withdrawn. to have this matter continued for two weeks
On the 25th day of June, 1923, the follow- so that we may obtain the necessary evidence ing order was made:
to maintain our side on the hearing of this mo“This cause came on to be heard on the ap- filing of this motion, we have not had sufficient
tion, and for the further reason that, since the plication of the defendant for alimony pending suit, upon consideration whereof, it is ordered time to obtain depositions and obtain certified that plaintiff shall pay to defendant the sum of copies of a former decree involved in this issue forty-five dollars ($45.00), payable forthwith, from the Lucas county court.” and the sum of fifteen dollars ($15.00) each
The court overruled this motion and proweek hereafter, commencing July 20, 1923, dur ceeded to hear testimony from the wife. The ing the pendency of this suit as and for tem- decree mentioned in the motion for continu. porary alimony.
"It is further ordered that the former entry ance was later introduced in evidence and ordering the payment of temporary alimony evidently was considered in connection with made on the 9th day of June, 1923, be, and the the other testimony for the purpose of rulsame is hereby vacated. Plaintiff excepts to ing upon the motion of June 5. this order and gives notice of appeal."
Was the trial court in error when it reTo the order made on the 25th day of general rule that the granting or refusing
fused to grant a continuance? It is the June, 1923, defendant in error prosecuted er- of a motion for continuance is in the sound ror to the Court of Appeals of Lorain coun- discretion of the trial court and that an ty, Ohio, and, after hearing, said court re-appellate court will not interfere with the versed the "judgment and proceedings" of the court of common pleas in favor of the of the trial court is plainly erroneous and
exercise of this discretion, unless the action plaintiff in error and remanded the case back is a clear abuse of this discretion. 13 Corpus to the court of common pleas for further pro- Juris, 123. ceedings. The Court of Appeals found there was change and was not questioned as to rea
The order made was subject to future error manifest upon the face of the record
sonableness of amount. The attorney for to the prejudice of the plaintiff in error, in the husband made no statement whatever as this, to wit: The court erred in refusing to the time when the husband would come to to grant the motion of plaintiff for a con- Lorain county for the hearing of the motion. tinuance; the court erred in allowing ali. Under the record, therefore, the granting of mony upon the evidence offered; the court erred in overruling a motion for a new trial. withheld financial support from the wife,
a continuance upon the motion would have The case comes into this court upon the who was being sued by her husband, for an granting of a motion to certify the record.
indefinite time, We cannot therefore hold T. A. Conway, of Elyria, for plaintiff in that the refusal to grant a continuance was error.
C. F. Adams and G. A. Resek, both of (1, 3) Did the trial court err in allowing Lorain, for defendant in error.
alimony upon the evidence adduced ?
A certified copy of the Lucas county deALLEN, J. Throughout this opinion the cree was introduced in evidence, and presumplaintiff in error will be called the wife, ably considered by the trial court. It reads and the defendant in error will be called the in the pertinent parts thereof as follows: busband.
"This 13th day of October, 1921, this causo The Court of Appeals reversed the order
came on to be heard upon the petition of the of the court of common pleas granting tem- plaintiff and the evidence offered on behalf of porary alimony to the wife upon three plaintiff and defendant. grounds:
“The court finds that the defendant, Franklyn First. That the trial court committed er-Wayne Norton, was duly and legally served ror prejudicial to the defendant in error in with summons and a copy of the petition herein; refusing to grant a continuance.
that the plaintiff now is and for more than thir
ty days immediately preceding the filing of the Second. That the trial court erred in grant-petition herein was a bona fide resident of Luing temporary alimony, for the reason that cas county, Ohio; that the parties hereto were there was no competent evidence to sustain married; that, on October 13th, 1919, a child, the allowance.
Franklyn Wayne Norton, Junior, was born as