Opinion
August Term, 1898.
William S. Maddox, for the appellant.
Robert L. Turk, for the respondent.
Present — BARRETT, RUMSEY, O'BRIEN and INGRAHAM, JJ.
This action was brought to wind up a copartnership which had been dissolved by mutual consent and for a receiver. The partnership was formed by written articles of copartnership, dated March 11, 1897, and by an instrument in writing, dated November, 1897, the partnership was by mutual consent dissolved. By this agreement of dissolution the plaintiff withdrew from the business carried on by the copartnership, the defendant to continue the business as long as he should desire, and the parties agreeing that an inventory should be taken of the assets of the copartnership and a statement of its liabilities be made. The defendant agreed to assume and pay the obligations of the copartnership, and upon the accounting being had and the appraisement being made of the assets of the copartnership, the defendant was to pay over to the plaintiff such sum or sums which should be mutually agreed upon between them; and in pursuance of this covenant, it seems that an inventory of the property of the copartnership and a statement of its liabilities were made. The defendant had paid all the liabilities before this action was commenced except a sum of $100 due an attorney, which was paid after the action was commenced, but before the order appointing the receiver was made, and two other small debts aggregating $35, the non-payment of which was explained by the defendant. There were some other contingent liabilities, the amount of which had not been adjusted, or the liability of the copartnership ascertained. In addition to these payments, it appeared that the defendant had paid the plaintiff upon the settlement of the business about $566. The effect of this agreement was that the property of the copartnership was to vest in the defendant, the plaintiff withdrawing from the copartnership. Upon this agreement plaintiff's rights to the assets of the copartnership terminated upon his accepting the personal covenant of the defendant that the defendant would pay all the liabilities of the copartnership, and would account properly to him for his interest therein. While the plaintiff had a right to bring this action for an accounting and recover from the defendant the amount that this defendant, under the agreement of dissolution, had agreed to pay the plaintiff, we do not think it was proper to appoint a receiver of the property which had, under the agreement, ceased to be the property of the copartnership, but had become the property of the defendant. For this reason we think that the order was improperly granted and should be reversed, with ten dollars costs, and the motion denied, with ten dollars costs.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.