Latta v. Kilbourn

.Mr. Justice Jackson, after stating the case, delivered the opinion of the court. It is first contended on behalf of the appellees that this appeal cannot be entertained by this court for the reason that the decree of October 27, 18S6, was the final decree in the cause from, which an appeal should have been taken. We are clearly of opinion that this proposition cannot be sustained. It is well settled by the decisions of this court that where the purpose of the suit is to obtain an account, such as that prajrnd for by the bill in this case and directed by the order of October 27, 1886, the decree is of such an interlocutory character that no appeal will lie therefrom. Beebe v. Russell, 19 How. 283, 285 ; Green v. Fisk, 103 U. S. 518; Keystone Manganese Co. v. Martin, 132 U. S. 91; Lodge v. Twell, 135 U. S. 232; McGourkey v. Toledo & Ohio Central Railway, 146 U. S. 544, 550. In this last case the authorities are thoroughly reviewed as to what constitutes a final decree, and it was laid down as the general rule that if the court made the decree *540 'fixing the.rights and liabilities of the parties, and thereupon Referred the. case to a master for a ministerial purpose only, ánd no further proceedings in court are contemplated,- the decree is final-; but if it referred the case to him for a judicial purpose, .ag to state an account between the parties upon which a further decree is to be entered, the decree is not final. In decretal orders, like that of October 27, Í886, the whole case is open for revision, and the court may change its rulings relating to the merits when the cause comes on for-final hearing upon the account. Fourniquet v. Perkins, 16 How. 82, 84. The ‘claim made by the amended bill' that Latta in the transactions with Stearns acted only as a broker, and _ that his share of the profits realized. therefrom was. only by way of compensation for conducting such business and using therein the experience, information, and facilities he acquired from his connection with the firm, (which was. denied under oath,) has not been insisted upon, and was clearly based upon a mistaken idea as to the true character of-' the purchases made on joint account by Stearns and Latta. It is not material- to determine whether those - purchases constituted a partnership between Stearns and Latta, or created the relation of tenants in common between them. The right of control retained by Stearns -would . indicate that their relation, in respect to these, purchases, was that' of tenants in common. Clark v. Sidway, 142 U. S. 682, 690. The court below based its opinion upon two grounds: First, that the scope of the copartnership business and agreement, as alleged in the third paragraph of the bil'1, (quoted above,) was established, and that the appellant' could .not engage in purchases.of real estate on his own account .or in connection with othei;s, except by the. consent of his copartners, without violating the duty and obligation which he owed to his firm; and, secondly, that even if the copartnership did not include the business'of buying and selling real estate on partnership account,, still the appellant could not employ the knowledge and information acquired in the course of ‘the partnership business in respect, to. the real estate market, in making purchases or transactions for his own benefit. *541 • The general principles on which the court proceeded admit of "no question, it being well settled that one partner' cannot,. directly or indirectly, use partnership assets for his own benefit; that he cannot, in conducting the business of a partnership, take any profit clandestinely for himself; that he cannot carry on the business of the partnership for his private advantage; that he cannot carry on another business in competition or rivalry with that of the . firm, thereby depriving it of the benefit of his time, skill, and fidelity without being accountable to his copartners for any profit that may accrue to him therefrom; that he cannot .be permitted to secure for himself that which it is his duty to obtain, if at all, for the firm of which he is a member; nor can he avail himself of knowledge or information; which may be properly regarded as the property of the- partnership, in the sense that it is available or useful to the firm for any purpose within the scope of the partnership business. ‘ It therefore becomes necessary, .in testing the liability of the appellant to account for ‘the profits realized; from the transactions with -Stearns, to consider and ascertain what 'was the s'cope of the partnership agreement in reference, to the purchase and sale'of real estate. This is the underlying and essential fact on which rests the proper determination of the question whether the appellant, in engaging in the joint enterprises with Stearns, violated any duty or obligation which he owed to the firm of Kilbourn & Latta. In other words, the question on this branch' of the case depends entirely upon this: Were or were not those transactions within the scope- of the firm' business, in respect to- which. Latta owed a duty to his firm, or in respect to which he could properly be said to- be the agent of the firm ? In his answer, which was called for under oath, Latta positively and in direct -terms denied the allegation of the bill that it was ever agreed that the firm should carry on the business of buying and selling real estate, and that at no time was such transaction within the scope of the partnership business. Under the well-settled rules of equity pleading and practice, his answer must be overcome by the testimony of at least two *542 witnesses, or of one witness with corroborating circumstances. The proofs in the present case not only fail to break down his denial on this point, but on the contrary affirmatively establish that neither under the first nor the second firm of ICilbou'rn & Latta did the partnership agreement extend to the business of buying and selling real estate either for invéstmeut or for speculation on firm account. Neither of the appellees testified to the contrary. The appellee Kilbourn, when pressed upon the question, evaded a reply thereto, and Olmstead, in .his sworn testimony, failed to support-the allegation of the bill as made on. that particular subject. On the other hand, the testimony of the appellant fully supported the denial of' his answer, and he is corroborated by all the facts and circumstances in the case, such as the character of the business as advertised and as actually condubted. The well-known characteristics of “ real estate and note brokers,” indicating, as the words imply, those engaged in negotiating the sale and purchase of real property for the account of others, afford a presumptive limitation upon the scope of the business, such as the appellant asserted and testified to in.this case. Ilis sworn answer .and testimony on this point has not been overcome by the vague and equivocal testimony of the appellees. The .court below was in error in finding as a matter of fact that the partnership extended to the buying and selling of real estate for the account of the firm. There is, therefore, no right on the part of the complainants to relief in this cause, based upon the consideration that the scope and character of the partnership business embraced the purchase and sale of real estate, either.for the firm alone, or jointly with others. The further allegation of the bill, “ that all profits resulting from operations in real estate by any member of the firm of Kilbourn & Latta during the existence of said partnership should belong to said firm and be entered upon the books of the firm and be paid into the partnership account, and that no member of said firm should engage in the business of buying and selling real estate in the said District on his own account, or with any other person or persons, except in cases where the proposed transaction had been explained to the said firm, and *543 the firm had declined to take any part therein,” was also posi-: tively denied by the answer of the appellant under oath. There is no testimony in the cause to overcome that denial'. On the contrary, the evidence establishes that there was no such restriction or limitation imposed upon the individual members. So that, the complainants were entitled to no relief on that ground. But aside from the foregoing questions of fact, how stands the case on the assumption that there was a new stipulation or agreement when Olmstead was taken into the firm, (as claimed by Kilbourn and Olmstead, and as set out above,) that knowledge and information obtained by any member of the firm as to bargains in real estate should be first communicated to the firm, with the view’of giving the firm, or the members-thereof, the first opportunity of purchasing, before any individual member thereof could act upon such knowledge or information for his own benefit ? Can the agreement to. furnish information as to bargains in real estate and give copartners the option .of taking benefit of'such bargains, be considered as so enlarging the scope of the partnership business as to include therein the purchase and sale of real estate on joint account ? It would be a perversion of language and a confusion of ideas to treat such a stipulation, if it were clearly established, as creating a partnership in future options to buy what did not already, by the terms of the copartnership, come within the scope and character of the partnership business. That alleged stipulation, instead of enlarging the partnership business, was manifestly a restriction and limitation upon the power and authority of the copartners to bind the firm, or the-members thereof, in any real estate transaction, until each member had expressly consented or agreed to join in the particular purchase, specially submitted for consideration. By. the well-settled law of partnership each member of the firm is both a principal and an agent to represent and bind the firm and' his associate partners in dealings and transactions within the scope of the copartnership. No, express authority is necessary to confer this agency or fiduciary relation in re-' spect to the business of the firm. If the buying and selling *544 of real estate was a part of the business of Ehlbourn & Latta, the alleged stipulation about giving an option to the firm and the. members thereof to accept special bargains would have been an idle arrangement. But under the alleged stipulation each and every purchase of real estate was a special and individual transaction or enterprise, requiring the special assent and agreement of each partner thereto, before it became a subject of partnership, or was brought within the scope of the partnership business. .Under the operation of the agreement, a partner who purchased real estate, either on joint or partnership account, did so not under or by virtue of the partnership articles, or under authority derived from the partnership business and his implied agency to represent the firm therein, but solely and exclusively from the special assent or agreement of his associates to engage in that particular purchase. So. that each parcel of real estate to be acquired, as well as the agreement to purchase the same, was first made the subject of a .special arrangement. It is difficult.to understand how, under such circumstances and conditions, a copartnership could properly be said to include or extend to the business of purchasing and selling real estate. The special subject of each purchase, as admitted by Kilbourn, — like the purchase of bonds and other securities, — did not and could not come within the operation.of the copartnership, or become a part of the partnership agreement, until each particular piece of property had been selected and agreed upon. It- is undoubtedly true that, under this alleged agreement, if a partner had submitted to the firm or his associates the question of buying a particular parcel of land, and they had agreed to make that purchase, he would thereafter have occupied an agency or fiduciary relation in respect to that particular piece of property. But the question here is whether his failure to give the firm, or his copartners, the opportunity of making an election, to buy. certain real estate, and his making the purchase thereof for. his own account, or jointly with another, is such a.violation of his fiduciary relations to the firm and his associates in respect to copartnership business as to entitle the latter to call him to account for profits real *545 ized in such transactions. In other words, will the violation - of his undertaking to give to the firm, or his associates, the opportunity or option to engage in any particular transaction, not within the scope of the firm’s business, entitle the copartners to convert him into a constructive trustee in respect to the profits realized therefrom? That the members of the firm, prior to 1871, or after that date, by special agreement, made purchases of particular parcels of real estate on speculation or for investment, did not make such speculative transactions a part of the partnership business so as to invest either partner with the implied authority to engage therein on account of the firm. The name of the firm was never, in fact, used in such special ventures, which no partner had authority to enter into except, and until, the consent of the others had been specifically obtained so to do — each instance of buying on firm or joint account being the subject of a separate, special, and distinct agreement'. It may be said of any and every partnership, irrespective of’ its regular business, that by consent of all the members, other matters beyond the scope of the partnership may become the subject of investment or speculation on joint account, but such special transactions cannot properly be said to come within the scope of the partnership. The very fact that the express consent of each partner was required in order to engage in such special ventures goes clearly to show that the transactions were not within the scope of the partnership, for, if They .were,special consent could not be required as a condition precedent for engaging therein. Matters within the scope of the' partnership are regulated and controlled by a majority of the partners, but by the .alleged stipulation under consideration a single member of the firm could control the firm’s action in respect to purchases of real-estate. This is inconsistent with the idea that the business of the firm extended to such purchases. Again, the alleged agreement does not provide how such future, acquisitions as might be specially selected or agreed, upon for speculation or for investment were to be paid for, or in what.proportion the several partners should be interested *546 therein. Neither does it distinctly appear from the-allegations of the bill, nor from the testimony of the appellees, whether, in acting upon information given, the special purchases were to be made for the account of the partnership or for the account of the several members of the firm. The methods of keeping the accounts of such transactions in the name of the individual members rather than in the'name of the firm would indicate that such purchases were for the benefit of the separate partners rather than for the firm. There is no allegation in the bill, nor any direct statement in the testimony of the appellees, that if the information had been given as to the Stearns’ transactions, either the firm or themselves would have exercised the option of engaging therein upon the conditions of allowing Stearns to determine “ when, at what price, and on what terms any portion of the real estate might be sold.” Neither is it alleged in the bill, nor shown by the proofs, that the appellant in any way neglected the partnership business, nor that the firm and his co-partners sustained any damage whatever from the transactions. On the contrary, it is shown that from the purchases and sales of the property bought on joint account with Stearns the firm derived its regular commissions. This alleged new stipulation amounts, if it has any legal force and operation, simply to an agreement for a future partnership, or the joint acquisition of such special properties as might by mutual and unanimous consent be considered as hold- . ing out a prospect of profitable speculation; and at most could only be regarded as an agreement for a future partnership in respect to such properties as might be specially selected for speculation. It is well settled in such cases that no partnership takes place until the contemplated event actually occurs. It stands upon the same principle as an option to become a partner, which creates no partnership until the option is actually exercised. If the- stipulation in question could be construed into an agreement that no partner should engage in the buying and selling of real estate on his own account, would that entitle the other members o'f the firm to share in the profits that *547 Latta made in .real estate speculations without having first secured the consent of his copartners to his engaging therein ? No such proposition can be sustained. In Murrell v. Murrell, 33 La. Ann. 1233, it was held that a partner who, in violation of the act of partnership, enters into another firm, does not thereby give the right to his-original copartner to claim a share in the profits of the'new firm. The violation of the agreement may give rise to an action for damages, but inasmuch as the original copartner could riot be held, without his consent, for the debts of the new firm, he cannot claim to be made a partner therein. In Dean v. McDowell, 8 Ch. D. 345, one of the stipulations in the articles of- copartnership was that “ said C. A. McDowell should diligently and faithfully employ himself in and about the' business of the partnership, and carry on and conduct the same to the greatest advantage of the partnership,” and by another article jt was stipulated that neither partner should “ either alone or with another person, either directly or indirectly, engage in any trade or business1 except upon the account arid for the benefit of the partnership.” The business of the firm was to deal as merchants and brokers in selling the produce of salt works on commission, and during its existence McDowell clandestinely purchased a share in a firim of salt manufacturers. A bill was filed by the other partner for an account of the profits realized in the new business, and it was held by the master of the rolls that the bill could not be sustained. On appeal this judgment was affirmed. Lord Justice James, after stating the general principles of' partnership law, said: “The business which the defendant has entered into was that of manufacturing salt, which was to be the subject-matter of the trade of the first firm. If in that he had in any way deprived the firm of any profits they otherwise would have made — if by his joining in the partnership for the manufacture he had diverted the goods from the firm in which he was a partner to some other firm,. I can see that that 'would be a breach of his duty; but it is not pretended or alleged that any alteration took place in the business of the firm by reason of his having become a share *548 holder in the other business. It is not pretended that there was any alteration -in the commission or anything else.- Everything remained exactly as it'was, so that it cannot be suggested, that there was a farthing’s worth of actual damage done to the original firm by reason of .his having become a shareholder . in the works which produced the thing in which the firm 'traded. Under these circumstances it seems to me that we cannot say his profit from the new business was a' benefit arising out of his partnership with the plaintiffs. It was not a benefit derived from his connection with the partnership, or a benefit, in respect of which he was in a fiduciary relation to the partnership. His relation to the partnership in this respect was the same as an 'ordinary covenantor to a covenantee in-respect of añy' other covenant which is broken. It was a ■ covenant by a partner with a -copartner, a covenant that he would hot do something which might result, in damage. But it was.not a covenant, in my view, which was in any way "' connected • with the fiduciary relations . between the parties.. ■ That being so, it. seems to me that the Master of-the Rolls ■ was'right in saying that you cannot extend the cases with regard, to a share in the profits to a case in which, as between •the parties, there really was nothing but a breach of covenant, which in .truth did not result, and could not have resulted, in the slightest loss to the partnership, unless it could, have beeh shown that it led to the covenantor neglecting the business of the partnership, and devoting himself to. other business, and diverting his time and attention from the t business to-which it was his. duty to attend.” These views, which were concurred in by the other members of the court-, are directly in point in the present case, which, in principle, cannot'be distinguished from the case there under consideration^ We are clearly of -opinion that the alleged -new stipulation ' that each copartner should furnish to the firm, or to the members- thereof,, information as to bargains in real- estate, and give-it or them the option to engage Ifi the acquisition thereof before • acting upon such information for his own' benefit, neither enlarged the scope of' the partnership so as to make . it include the purchases and sales o'f real estate, nor precluded *549 any member of the firm from making purchases on his own - account or jointly with others; and that the act of the appellant in purchasing property with -Stearns was not such a violation of his duty and obligation to the firm of Kilbourn «&? Latta, or to the members thereof, as to entitle the appellees to share in the profits which he realized therefrom. ' In respect to the second ground, on which the court below rested its judgment, that the appellant could not take. advantage of the skill, knowledge, and information as to the real estate market acquired in the course of his connection, with the partnership of Kilbourn & Latta so as to gain any profit individually therefrom, but was bound to share with his co-' • partners all the béneficial results which could be -derived from his knowledge or information on-that subject, we-need not do more than to say that this proposition is wholly unsupported either by the authorities or by any legal principle applicable to partnership law.' It is well settled that a partner may traffic outside of the scope of the firm’s business for his own benefit and advantage, and without going into the authorities it is sufficient to. cite the thoroughly considered case of Aas v. Benham, 2 Ch. D. 1891, 244, 255, in which it was sought to make one partner accountable for profits realized from another business, on the ground that he availed himself of -information obtained by. him in thé course of his partnership business, or by reason of his connection with the firm, to secure individual advantage in the new enterprise. It was there laid down by Lord justice Lindley that, if a member of a partnership firm avails, himself of. information obtained by him in the. course • of the transaction of-the partnership business, or by .reason of his connection with the Arm, for. any purpose within the scope of the-partner ship business,, or for any pu/rpose which would' compete with the partnership business, he is liable to account to the firm for any-benefit he may ham obtained from the use of such, information ; but if he uses the information for purposes which are wholly without the scope of the partnership business, and not competing with it, .the firm is not entitled to an account of such benefits. *550 It was further laid down in that case, in explanation of what was said by Lord Justice Cotton in Dean v. McDowell, ubi supra, that “it is not the source-of the1 information, but the use to which it is applied, which is important in such matters. To hold that a partner can never derive any personal benefits from information which he obtains as a partner would be manifestly absurdand it was said by Lord Justice Bowen that the character of information acquired from the partnership transaction, or from connection with the firm, which the partner might not use for his private advantage, is such information as belongs to the partnership in the sense of property which is valuable to*the partnership, and in which it has a vested right. Tested by these principles, it cannot be properly said that Latta used any information which was partnership property so as to'render him chargeable with the profits made therefrom. Ilis knowledge of the real estate market, or in respect to profitable investments therein, was not used in competition with the business of the firm, nor in any manner so as to come within the scope of the firm’s business. The points already considered being sufficient to dispose of the case, we do not deem it necessary to go into the other ■question discussed as to whether a parol partnership, in respect to purchasing and selling real estate, or an agreement between copartners to give each other the option of engaging in such purchases, would come within the operation of the statute of frauds. Ve are clearly of opinion, Upon the whole case, that the decree should be Reversed, and the cause remanded to the court below with dweetions to dismiss the bill at the cost of the appellees. Mr. Justice. Harlan did not hear the argument and took no part in the consideration or decision of this case.