Berg v. Gillender

Ingraham, J.: On July 1, 1891, Augustus T. Gillender and five others, parties to ■ this action, entered into an agreement for the purchase, development and sale of certain real property, the parties to the agi'eement to be interested in the following proportions : The defendant Augustus T. Gillender, twelve-twentieths thereof.; the plaintiff Charles I, Berg, two-twentieths; the defendant Napoleon B. Kukuck, two-twentieths ; the defendant Nathan F. Barrett, t'wo-twentieths; the defendant Adolphus H. Stoiber, one-twentieth, and the defendant John Ef. Hindley, one-twentietli. The agreement recites that for convenience the'property had been taken in the names of the defendant Augustus T. Gillender, the plaintiff Charles I. Berg, and the defendant Hindley, as joint tenants, they being designated by the term “ trustees.” The agreement then provided that the premises were to be held by the trustees in trust not longer than the 1st day of July, 1895, except that said period might be" increased or diminished by a further agreement; that these trustees should have power to call for contributions by those interested in a sum not exceeding $25,000, the proceeds thereof to be divided among the associates according to their proportionate interests in the property. Provision was made in the agreement for the method by which the consent of the parties to the instrument [290] should be obtained when necessary or by which the agreement conld be modified. The complaint alleges that after the execution and delivery of said contract and the conveyance of the property to the trustees, it ■was agreed among the parties to the contract that the defendant Gillender should have active charge of the management and development of the said property and of making sales thereof; that there was thereafter paid to Gillender, in accordance with the terms of the contract, the sum of $25,000, as therein provided, and also various other sums to be expended for the purposes set forth in the agreement; that Gillender proceeded with the development and improvement of said property, and from time to time various, sums of money were expended by him. for said purposes; that sales of fcertain portions thereof weré made by Gillender at different times and the moneys and other proceeds resulting from such sales were also received by him. The complaint then sets' forth certain sales made by Gillender-and the receipt of the .consideration therefor by him; that two of the associates, Barrett and Stoiber, subsequently assigned, transferred and released all their rights and interests to the defendant Gillender;' that for a short period after the execution of said agreement the said Gillender- rendered to the plaintiff at irregular intervals statements or accounts of his transactions under the terms of said agreement; that said statements were, incomplete and fragmentary, and no statements or accounts of money received or expended by Gillender had been received by the plaintiff, and that on the 16tli day of June, 1905* the defendants Mead and Fliess were duly appointed committee of all the property of said Gillender. It is not alleged that Gillender. had been adjudged incompetent, but I suppose that could be fairly inferred from the complaint. The' defendants, other' than -Gillender’s committee, answered the complaint admitting the allegations and joining in the demand for an accounting. The committee of Gillender admitted the execution of the agreement, the conveyance of the property to the trustees and admitted that Gillender made certain conveyances of a portion of the-property set forth in the complaint. The judgment demanded by the plaintiff is that the relations existing between the plaintiff and the defendants under and by virtue of this agreement be dissolved and terminated, and that an account be taken of all trans291 • actions and dealings liad under such contract; that such property as might remain undisposed oí under said agreement be sold and the proceeds thereof distributed among such of the parties to the agreement as might be entitled thereto, and for other relief. The case coming on for trial the court found these facts in accordance with the allegations of the complaint, and judgment was entered adjudging "that the relations between the parties he terminated and dissolved and directing the committee of Gillender to account, and appointing a referee to take and state the account. I think this agreement established that there was a joint adventure as' between the parties to the contract in relation to this .real property, the title to which was taken and held by the trustees in trust for the parties to the agreement; and that as the time during which the agreement was to continue by its terms has long -since expired, the plaintiff was entitled to an adjudication that the .partnership or adventure be-dissolved and that the trustees account in this action. The form of the interlocutory judgment is, I think, improper, as it should direct a general accounting of all transactions between the parties to the agreement, so that in one proceeding there could be a final accounting and winding up of the affairs of the joint adventure. Upon such an accounting the trustees would be required to submit an account of the proceedings, and the judgment could direct that each trustee should account for the money or property that had come into his hands or for which he was responsible, and there could thus be a final settlement of the accounts,-and a judgment in favor of and against each party to the action according to their respective rights as they developed before the referee. This I understand was acquiesced in by all the parties who appeared on the argument. It follows that this judgment should be modified by containing a provision for a general accounting as hereinbefore indicated, and as modified the judgment should be affirmed, with costs to the parties who appeared on this appeal payable out of any money that may subsequently be realized upon the final settlement of the accounts. Patterson, Laughlin, Clarke and Houghton, JJ., concurred. Judgment modified as indicated in opinion, and as modified affirmed, with costs to the parties appearing as stated in opinion.