in the absence of any reason to suspect him | 6. Partnership 277-Partnership continues of some impropriety. Their response to the notice from the committee of the Bar Association, promising to observe the requirements of the canons, and their subsequent faithful observance of them, together with their prompt adjustment of the civil liability arising out of the wrongful act of their employee, must also be taken into consideration, and their conduct as shown by this record does not indicate a lack of the honesty, good moral character, or professional standards which requires the forfeiture of their licenses to practice law.

August 14, 1922, William Thanos, appellee, filed his bill in the superior court of Cook county, asking for a dissolution of the partUnder Uniform Partnership Act, §§ 29, 31, nership existing between him and Nick Thawhere 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. i now, and has at all times since its establish

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 appelpellee 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 and refused to render an account of the partnership business and to pay over to appellee any portion of the profits to which he is entitled.

Appellant filed his answer, admitting that the partnership was created in 1903 and that it continued to July 1, 1919. He avers that on said last-mentioned date it was dissolved by the withdrawal therefrom of appellee. He denies that the restaurant at 3905 Cottage Grove avenue is now being conducted as a partnership business, and alleges that, since the 1st of June, 1919, it has been operated by him as his individual business. He denies that in 1919 he and appellee entered into negotiations for the purchase, for the benefit of the partnership, of the premises at 3905 Cottage Grove avenue, and avers that said premises were bought by him with his own money, after appellee had refused to join him in the purchase of the property. He denies that any part of the purchase money was taken from the partnership funds, and that appellee has now, or ever had, any interest in said premises. He denies that appellee ever demanded that the premises be purchased in their joint names, and avers that he offered to convey to appellee a half interest in the premises if appellee would pay his share of the purchase price. He denies that any con

There was a hearing before the chancellor and a decree entered finding that the partnership was still in existence; that the building at 3905 Cottage Grove avenue was a part of the partnership assets; that the restaurant being conducted at that location was a partnership business. The decree directed that appellant account to appellee for his share of the profits and referred the cause to a master to state the account. From that decree, this appeal is prosecuted.

This suit is based upon the claim that the building at 3905 Cottage Grove avenue is partnership property and that appellant holds the same as trustee for the benefit of the partnership. There is no allegation in the bill nor evidence in the record which justifies the claim that an express trust was created by the act of the parties or that a resulting trust arose from the conduct of appellant. The theory of the bill is that appellant fraudulently, and without the knowledge or consent of appellee, purchased in his individual name the building necessary to the successful operation of the partnership restaurant and paid for the same with partnership funds, and that equity should raise a constructive trust in favor of the partnership for the purpose of working out right and justice.

[1] The law is well settled that one claiming the benefit of a constructive trust must

establish it by clear and convincing proof. If the evidence is doubtful or capable of reasonable explanation upon theories other than the existence of the trust, it is not sufficient to support a decree declaring and enforcing the trust. This rule was established for the purpose of stabilizing real estate titles. The policy of the law is that all titles to real estate shall be evidenced by writing, and wherever the courts have permitted title to be established by parol evidence, they have always been careful to examine every circumstance which might affect the probability of the alleged claim and have refused to grant relief where the claim was not supported by proof unequivocal and free from reasonable doubt. Winkelman v. Winkelman, 307 Ill. 249, 138 N. E. 637; Streeter v. Gamble, 298 Ill. 332, 131 N. E. 589, 23 A. L. R. 1485.

building and the right of the partnership to renew the same are partnership assets, this does not affect the right of appellant to secure and hold as his individual property the fee to the premises. The mere fact that appellant and appellee were partners in the restaurant business did not make real estate purchased by one of them partnership property. To make the building partnership property it must have been purchased with partnership funds for partnership purposes, or at least there must have been one of such elements present. Blakeslee v. Blakeslee, 265 Ill. 48, 106 N. E. 470; Robinson Bank v. Miller, 153 Ill. 244, 38 N. E. 1078, 27 L. R. A. 449; Alkire v. Kahle, 123 Ill. 496, 17 N. E. 693, 5 Am. St. Rep. 540.

Appellant testifies that prior to July 1, 1919, appellee withdrew from the partnership 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 tion 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. 1061⁄2) 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 by clear and convincing proof and is against the manifest weight of the evidence. The evidence shows that this property was not bought with partnership funds, but that the purchase price was paid by appellant from private funds which had been set aside to him as his share of the profits from the partnership business. While the lease on this

[5-7] Either the act of appellant in declaring the partnership terminated or the act of appellee in withdrawing from the partnership business was in fact and in law a dissolution of the same. Blake v. Sweeting, 121 Ill. 67, 12 N. E. 67. Such dissolution of the partnership was not, however, its termination. It continues until the winding up of partnership affairs is completed. In a court

(145 N.E.)

of equity a partner who, after the dissolution of the partnership, carries on the business with the partnership property is liable, at the election of the other partner, to account for the profits thereof, subject to proper allowances. Karrick v. Hannaman, 168 U. S. 328, 18 S. Ct. 135, 42 L. Ed. 484. In winding up a partnership, however, a court of equity will take into consideration all the facts and circumstances surrounding the dissolution of the partnership.

tuted by the wife, where it appears that such wife has not sufficient means of her own to make a defense.

2. Continuance 7-Granting or refusing discretionary.

The granting or refusing of a motion for continuance rests in the sound discretion of the trial court.

Granting of alimony 3. Divorce 214(4) pendente lite not reversible because of absence of husband from hearing on motion.

Error to Court of Appeals, Lorain County. Action by F. W. Norton against Regina Norton. Judgment for temporary alimony for defendant was reversed by the Court of Appeals, and the case comes to the Supreme Court on granting of motion to certify record. Judgment of Court of Appeals reversed.-[By Editorial Staff.]

In this case, when the partnership was The granting of a motion for alimony pendissolved about July 1, 1919, each partner had 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 husband, the amount of the said alimony granted equitable to require appellant to account for not being under the facts excessive nor unprofits 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 used it in other business it will probably be impracticable to trace it and ascertain the profits or accumulations he has derived from its use. As each retained a portion of the firm assets and neither demanded a settlement of the business of the firm and a division of the assets for a period of three years after the dissolution of the partnership, principles of equity and justice require that the court regard what each retained as a division pro tanto and that each be charged with the sum so retained and account for the portion in his hands. Ligare v. Peacock, 109 Ill. 94. The evidence in the record is not sufficiently clear for us to specifically direct how the account shall be stated, but the rules for stating such accounts between partners are sufficiently well settled and recognized that it would seem specific directions are not required.

The decree is reversed, and the cause is remanded to the superior court of Cook county for further proceedings in harmony with views herein expressed. Reversed and remanded.

NORTON v. NORTON. (No. 18275.) (Supreme Court of Ohio. Oct. 7, 1924.)

(Syllabus by the Court.)

1. Divorce 213-Judgment in suit for alimony held no bar to application by wife, defendant in divorce suit, for alimony pendente lite.

The plaintiff in error, Regina Norton, some time in 1921, sued the defendant in error F. W. Norton, for alimony in Lucas county, Ohio. A decree was entered awarding alimony to plaintiff in error, and all payments required by the decree were paid prior to January 1, 1922.

On the 20th day of December, 1921, the defendant in error filed his petition for divorce against plaintiff in error in the court of common pleas of Lorain county, Ohio.

On the 5th day of June, 1923, plaintiff in error filed a motion asking for temporary alimony, due notice of which was served on defendant in error's attorney by copy upon June 2, 1923.

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 error's counsel moved for a continuance, which was denied. The following order was made upon the same day by the court of common, pleas and entered on the journal;

"The motion by the defendant for an allowance of alimony, of which due notice has been given, is heard and granted, and it is ordered that the plaintiff pay to the defendant the sum of fifteen dollars ($15.00) per week for the maintenance of herself during the pendency of this action, and that said payments be continued on Saturday of each week until modified by the further order of this court."

A judgment for alimony rendered in an action solely for permanent alimony brought by the wife, which judgment is fully satisfied, does not bar an application for alimony pendente lite made by the wife for the purpose of obtaining funds with which to enable her to make On the 28th day of June, 1923, defendant a defense in a suit for divorce brought by the 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 following:

"That the property rights between the parties have heretofore been adjusted by a court of competent jurisdiction."

On the 3d day of July, 1923, plaintiff in error filed her motion to strike from the files the motion for a new trial for the reason that it had not been filed within three days from the rendition of the judgment above set forth. This motion was later withdrawn. On the 25th day of June, 1923, the following order was made:

Third. Upon the ground that the court of common pleas erred in overruling the motion of defendant in error for a new trial. We shall consider these assignments of error in their order.

[2] An application for a continuance at the hearing of the motion for temporary alimony was made by the husband's attorney upon Saturday, June 9, 1923, in the following words:

Mr. Resek: "At this moment we would ask to have this matter continued for two weeks so that we may obtain the necessary evidence to maintain our side on the hearing of this mo

tion, and for the further reason that, since the filing of this motion, we have not had sufficient time to obtain depositions and obtain certified copies of a former decree involved in this issue from the Lucas county court."

"This cause came on to be heard on the application of the defendant for alimony pending suit, upon consideration whereof, it is ordered that plaintiff shall pay to defendant the sum of forty-five dollars ($45.00), payable forthwith, and the sum of fifteen dollars ($15.00) each The court overruled this motion and proweek hereafter, commencing July 2d, 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. ance was later introduced in evidence and evidently was considered in connection with the other testimony for the purpose of ruling upon the motion of June 5.

"It is further ordered that the former entry ordering the payment of temporary alimony made on the 9th day of June, 1923, be, and the same is hereby vacated. Plaintiff excepts to 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 It is the fused to grant a continuance? June, 1923, defendant in error prosecuted erof 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 plaintiff in error and remanded the case back to the court of common pleas for further proceedings.

The Court of Appeals found there was error manifest upon the face of the record to the prejudice of the plaintiff in error, in this, to wit: The court erred in refusing to grant the motion of plaintiff for a continuance; the court erred in allowing alimony upon the evidence offered; the court erred in overruling a motion for a new trial. The case comes into this court upon the granting of a motion to certify the record.

T. A. Conway, of Elyria, for plaintiff in

error.

C. F. Adams and G. A. Resek, both of Lorain, for defendant in error.

ALLEN, J. Throughout this opinion the plaintiff in error will be called the wife, and the defendant in error will be called the husband.

The Court of Appeals reversed the order of the court of common pleas granting temporary alimony to the wife upon three grounds:

First. That the trial court committed error prejudicial to the defendant in error in refusing to grant a continuance.

exercise of this discretion, unless the action of the trial court is plainly erroneous and is a clear abuse of this discretion. 13 Corpus Juris, 123.

The order made was subject to future change and was not questioned as to reasonableness of amount. The attorney for the husband made no statement whatever as to the time when the husband would come to Lorain county for the hearing of the motion. Under the record, therefore, the granting of a continuance upon the motion would have withheld financial support from the wife, who was being sued by her husband, for an indefinite time. We cannot therefore hold that the refusal to grant a continuance was

error.

[1, 3] Did the trial court err in allowing alimony upon the evidence adduced?

A certified copy of the Lucas county decree was introduced in evidence, and presumably considered by the trial court. It reads in the pertinent parts thereof as follows:

"This 13th day of October, 1921, this cause came on to be heard upon the petition of the plaintiff and the evidence offered on behalf of plaintiff and defendant.

"The court finds that the defendant, Franklyn Wayne Norton, was duly and legally served with summons and a copy of the petition herein; that the plaintiff now is and for more than thirty 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 there was no competent evidence to sustain the allowance.

cas county, Ohio; that the parties hereto were married; that, on October 13th, 1919, a child, Franklyn Wayne Norton, Junior, was born as