Weisel v. . Cobb

18 S.E. 943, 114 N.C. 22

• Court: Supreme Court of North Carolina
• Decided: February 5, 1894
• Status: Published

Opinion

Burwkll, J.:

The plaintiff, being the .survivor of the linn of S. AVeisel & Bon, succeeded bv right, of such sur-vivorship to all the assets of the partnership upon the death of his partner. They were vested in him as trustee, first, to pay out of them all the debts of the firm; and secondly, to divide-between himself and the administrator of his deceased partner what should remain after the payment of the firm debts according to the terms of the copartnership. The law gave him the title to all these assets, but along with it put upon him the burden of the trust. By the assignment set out in the record he stripped himself, so far as he could, of this title, and put it in the defendant (who had been appointed to administer the estate of the deceased partner), “ to enable the said Cobb, administrator, to pay off all the debts and liabilities of the said Samuel Moisei. including the debts of the said firm.” The plaintiff could not thus, or indeed in any way, escape his liability to the partnership creditors. That liability remained upon him notwithstanding the assignment. And his right to a share of what remained after the payment of the partnership debts was unaffected, for, far from surrendering his personal interest in the assets’ as we construe the assignment, he expressly imposed upon the assignee, whom ho thus substituted for himself to administer the trust, the duty “to legally account for all such moneys as may come into his handshv virtue of this assignment”; that is to say, to administer these partnership assets just as he would administer them under the law if the assignment had not been made'. Bor two reasons, therefore, the plaintiff could call for an account of the management of these assets: to ascertain if the ffnn debts had been paid, and, if not, to have that done; and to ascertain if any sum was due to himself, and if so to receive its payment. He therefore, most unquestionably, had a good cause of action against the assignee to whose care he hail committed the valuable partnership assets.

If it should appear on the taking of the account that the debts of the firm had all been paid and that the balance remaining after sUc-h payment had been applied as plaintiff had expressly or impliedly agreed that it should be, there would be a judgment against him for costs, and the whole matter would be finally settled.

The plaintiff, being thus circumstanced, sued "George W. Cobb,” and alleged among other things that the value of the assets was “ thirty-three thousand dollars or some other large sum,” and that “ G. YV. Cobb by virtue of said assignment” took charge “of said assets, and converted same to his use.” The record shows that by consent there was a reference to state an account. The referee heard the cause and made a report, and, upon the hearing of the case upon exceptions to that report, “ G. W. Cobb” made a motion to dismiss the cause for the reason that the assignment spoken of was made to “ G. W. Cobb, administrator,” and upon this motion the action was dismissed.

The facts set out in the complaint constituted a good cause of action in favor of the plaintiff against the defendant. If upon the taking of the account it shall be found that on a proper settlement of the partnership business there was a balance left after the payment of all the liabilities of the firm, the question will arise, AUas the plaintiff entitled to any -part of this balance under the terms of the copartnership ? And if that be answered in the affirmative, the question will arise, Did the plaintiff' expressly or impliedly agree that the defendant should apply the balance so duo him to the payment of the individual liabilities of Samuel Weisel? And should this also be answered in the affirmative/there would arise the further question, Has the defendant used 'that fund in the proscribed way? About this last question the plaintiff had a right to inquire. He is the trustor. It is his privilege to demand of the trustee an account. As we have said, the plaintiff, as surviving partner, was invested with the title to all the partnership assets as a trustee. He transferred that trust to “George W. Cobb, administrator.” The duty of winding up the affairs of 8. Weisel & Son, there being a surviving partner, was not imposed bylaw on the administrator of Samuel Weisel. He received these valuable assets, not as administrator, we think, but the title to them was put in him because he was such administrator. At any rate he took them in some capacity and for some purpose from the plaintiff, who by this action demands an account of his trusteeship. He is, we think, clearly entitled to it. If “George W. Cobb, administrator,” has applied those assets as they were legally and properly applicable, all well. That will protect “ (leorge W. Cobb.” If either “George W. Cobb” or “George W. Cobb, administrator,” has misapplied them, it is not well, and “ George AY. Cobb ” must answer for the broach. The action should not have been dismissed.

Error.