Opinion
No. 40779.
May 5, 1958.
1. Appeal — Chancellor's findings — appellate review.
Findings of a Chancellor will not be disturbed on appeal unless manifestly wrong, since he is better able to determine truth of factual matters than appellate court.
2. Appeal — where Chancellor does not make specific finding of facts — appellate review.
When a Chancellor does not make a specific finding of facts, an appellate court must look to the evidence and see what state of facts, if any, will justify the decree.
3. Equity — evidence — bill and cross-bill properly dismissed.
Evidence supported Chancellor's decree dismissing complainant's bill and defendants' cross-bill.
Headnotes as approved by Arrington, J.
APPEAL from the Chancery Court of Washington County, S.B. THOMAS, Chancellor.
Forrest G. Cooper, Indianola, for appellant.
I. A partnership, once established, is presumed to continue until it has been dissolved or terminated. 68 C.J.S., Sec. 350 p. 859.
II. The right to dissolve or terminate a partnership does not ipso facto dissolve or terminate it. The parties may elect to continue and until some action is taken after the right of dissolution arises, there is no dissolution. It takes affirmative action. Notice must be given and action taken. 68 C.J.S., Sec. 333 (a, b) pp. 845-46.
III. An involuntary failure to work in the business, through no fault of a partner, does not operate to terminate the partnership. 40 Am. Jur., Secs. 245, 247 pp. 300-02.
IV. As long as the firm continues, the mere fact that one partner is not as active as the other does not justify dissolution. 40 Am. Jur., Partnership, Sec. 247.
V. A partner who retires from a firm without selling his interest therein is entitled to his share of the firm assets, including the profits and interest on his investment computed from the time of his retirement. 68 C.J.S., Secs. 251, 377, 379 pp. 747, 890-91.
VI. A silent or inactive partner is entitled to an accounting. 40 Am. Jur., Sec. 245 pp. 300-01; 68 C.J.S., Secs. 382, 385 pp. 893, 898.
VII. Even if involuntary abandonment of partnership enterprises gives a right to dissolve, the remaining partner does not get the assets free and the other partner does not lose his rigtts to the assets. Ambler v. Whipple, 22 L.Ed. 403.
Kellner Kellner, Greenville, for appellees.
I. The appellant wholly failed to establish that there was a partnership between the appellant and the appellee, Sam F. Powers, Jr. American Surety Co. v. Cooper, 222 Miss. 429, 76 So.2d 254; Fairly v. Nash, 70 Miss. 193; Lipscomb v. State, 148 Miss. 410, 114 So. 754; Griffith's Miss. Chancery Practice, Sec. 674.
II. The finding of the Trial Court that there was a partnership between the appellant and the appellee, Sam F. Powers, Jr., during 1953, which the appellant abandoned early in 1954, is based on conflicting evidence and will not be disturbed by this Court because the finding is not manifestly erroneous.
ON CROSS APPEAL.
The appellant, Jewel Boatright, filed bill of complaint in the Chancery Court of Washington County against O.R. Horton and Sam F. Powers, Jr. The appellees answered and filed a cross-bill.
Upon a full hearing, the chancellor dismissed the bill and cross-bill, from which decree the appellant appeals and the appellees cross-appeal.
(Hn 1) The evidence upon the issues was sharply conflicting, and as we have held in many cases, the findings of the chancellor will not be disturbed on appeal unless manifestly wrong, since he is better able to determine the truth of the matter than the appellate court. (Hn 2) The chancellor did not make a specific finding of facts, and we have held that "when the chancellor does not make a specific finding of facts, then the court must look to the evidence, and what state of facts, if any, will justify the decree." Hulett v. Hulett, 152 Miss. 476, 119 So. 581. (Hn 3) We have carefully examined the record in this case and are of the opinion that the evidence supported the chancellor's decree. It follows that the judgment will be affirmed on direct and cross-appeal.
Affirmed on direct and cross-appeal.
McGehee, C.J., and Hall, Kyle and Gillespie, JJ., concur.