Durkheimer v. Heilner

Mr. Justice Moore delivered the opinion of the court: This is a suit brought by the plaintiff against the defendants to dissolve a partnership alleged to have existed between them, under the firm name of Heilner, Ottenheimer & Co., and for an accounting. The cause was referred to a referee to take the testimony, and the court upon the hearing rendered a decree against the defendants S. A. Heilner and S. Ottenheimer for the sum of thirteen thousand one hundred and ninety-two dollars and ninety-eight cents, and the costs and disbursements, from which they appeal. It appears from the evidence that on March 8, 1885, the plaintiff and defendants entered into a partnership at Baker City, Oregon, with a capital of seventy-three [271] thousand two hundred and thirty-two dollars and thirty-eight cents, of which plaintiff furnished twenty-five thousand five hundred and five dollars and fifty-nine cents, the defendant Heilner twenty-one thousand one hundred and thirty-two dollars and thirty-nine cents, and the defendant Ottenheimer twenty-six thousand five hundred and ninety-four dollars and forty cents; that on August 10, 1885, the stock of goods owned by the firm was sold to defendant Ottenheimer for twenty-two thousand five hundred dollars, for which he gave three promissory notes for seven thousand five hundred dollars each; that on August 10, 1885, the assets of said firm were as follows: Accounts, sixty-four thousand one hundred and thirty-seven dollars and eight cents; notes, fifty-six thousand five hundred and twenty-four dollars and ninety-five cents; real estate, five thousand eight hundred and fifty dollars; other personal property, one hundred and seventy-five dollars, — making a total of one hundred and twenty-six thousand six hundred and eighty-seven dollars and three cents, which embraces the notes above mentioned; that the liabilities of said firm on that day were as follows: To the Baker City creditors, eight thousand six hundred and eleven dollars and seventy-two cents; Portland creditors, twenty-three thousand and thirty dollars and forty-nine cents, and San Francisco creditors thirty-two thousand nine hundred and seventeen dollars, — making a total of sixty-four thousand fivehundred and fifty-nine dollars and twenty-one cents; that when the liabilities were paid there would remain as available assets the sum of sixty-two thousand one hundred and twenty-seven dollars and eighty-two cents, and of this sum the court found that the real estate was valued at four thousand dollars, — thus leaving of money, notes, accounts, and. personal property the sum of fifty-eight thousand one hundred and twenty-seven dollars and eighty-two cents; that each partner was entitled to one third of that amount, in addition to the real estate, or the sum of nineteen thou [272] sand three hundred and seventy-five dollars and ninety-four cents, and that the plaintiff had received six thousand two hundred and twenty-two dollars and ninety-six cents, leaving a balance of thirteen thousand one hundred and fifty-two dollars and ninety-eight cents due him for which he obtained a decree. This would have been correct if the defendants had converted into money the whole assets as above stated, but it appears that since May 10, 1885, they had collected of the accounts the sum of forty-two thousand six hundred and sixty-four dollars and ninety-three cents, and of the notes the sum of forty-four thousand two hundred and eighty-four dollars and ten cents, making a total of eighty-six thousand nine hundred and forty-nine dollars and three cents; that from this sum so collected they had paid the liabilities of sixty-four thousand five hundred and fifty-nine dollars and twenty-one cents, thus leaving a balance of twenty-two thousand three hundred and eighty-nine dollars and eighty-two cents, and that the plaintiff is entitled to one third of that amount, or seven thousand four hundred and sixty-three dollars and twenty-seven cents, and as he had received six thousand two hundred and twenty-two dollars and ninety-six cents he should have had a decree for one thousand four hundred and forty dollars and thirty-one cents instead of the one rendered for thirteen thousand one hundred and fifty-two dollars and ninety-eight cents. The total assets of the firm August 10, 1885, not including the value of the real estate, was one hundred and twenty thousand eight hundred and thirty-seven dollars and three cents; that since the total collections have been eighty-six thousand nine hundred and forty-nine dollars and three cents, that there remains of the notes, accounts, and personal property uncollected and undisposed of, the sum of thirty-three thousand eight hundred and eighty-eight dollars, and that the plaintiff is entitled to one third of this amount when converted into money. [273] The decree of the court below will be reversed so far as it relates to the amount found due the plaintiff, and one here entered dissolving the copartnership, and rendering a decree in favor of the plaintiff and against the defendants for one thousand four hundred and forty dollars and thirty-one cents, and for his costs and disbursements in this court and in the court below. The cause will be remanded to the court below with directions to appoint a receiver to sell the said notes, accounts, and personal property, and, after payment of the expenses thereon, upon the report of such receiver, a decree will then be entered awarding to plaintiff one third of the net proceeds of such n otes, accounts, and personal property.