Tyler v. Wilson

BARNARD, P. J.

On July 1, 1940, the plaintiffs leased certain mining property to one Pendell, the lease providing for the payment of a minimum monthly royalty of $250. On August 1, 1940, Pendell, by written agreement, assigned this lease to Blake Wilson and D. S. Bushnell, who assumed and agreed to perform all the covenants of the lease. Blake Wilson and D. S. Bushnell were in possession of the property and, as the court found, operated the same as a general partnership of which they were the sole partners until early in September, 1940.

On September 5, 1940, a certificate of limited partnership was filed in which it was recited that the name of the partnership was to be “Wilson and Bushnell, ’’ that Blake Wilson and D. S. Bushnell were general copartners, and that the defendant Wheatland and some nineteen other persons were limited partners, having contributed named amounts and being entitled to named percentages of the profits. No written assignment of the lease was made to this limited partnership by Blake Wilson and D. S. Bushnell and there was no written assumption of its obligations on the part of the new partnership. The new partnership went into possession of the property early in September, 1940, and conducted mining operations thereon until May 1, 1941.

On May 1, 1941, the defendant Wheatland, who held a chattel mortgage on the mining equipment used on the premises, took possession of this equipment under this mortgage and removed the same from the property. On May 6, 1941, Blake Wilson and D. S. Bushnell assigned their interest in the lease to a corporation which had been organized in April, 1941, with Wheatland as president and Bushnell as secretary. Immediately thereafter this corporation filed a petition in bankruptcy and in. August, 1941, the trustee in bankruptcy

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sold its interest in the lease. There is no evidence that the limited partnership was in possession of the property or had anything to do therewith after the assignment of the lease to the corporation on May 6, 1941.

In this action which followed the plaintiffs sought to recover $1000 covering the four monthly payments provided for in the lease from May to August, 1941, inclusive. They also sought to recover on two book accounts for $981.85 and $82.39, respectively, which had been assigned to them by third parties who had sold merchandise to the partnership. The action was brought against Blake Wilson, D. S. Bushnell, B. M. Wheatland and Warren Wilson, individually, and as general partners of the limited copartnership of “Wilson & Bushnell” and the partnership itself. The complaint alleged the assignment of the lease to Blake Wilson and D. S. Bushnell and the assumption by them of its obligations; that they went into possession on August 1, 1940, and operated as a general copartnership with themselves as sole partners until September 1, 1940; that subsequent to their taking possession and on September 1, 1940, the defendants formed a limited copartnership known as “Wilson & Bushnell”, with Blake Wilson and D. S. Bushnell as general partners and B. M. Wheatland as a limited partner; that on March 10, 1941, B. M. Wheatland and Warren Wilson assumed and participated in the general management of the general co-partnership and they are now and at all times have been, since the formation of the general partnership, general co-partners. The court found that on March 10, 1941, the defendant Wheatland assumed and participated in the general management of this limited copartnership, that Warren Wilson did not assume or participate in any such management and that since March 10, 1941, D. S. Bushnell, B. M. Wheatland and Blake Wilson have been general copartners in the limited partnership. As a conclusion of law, the court found that the plaintiffs were entitled to a judgment against B. M. Wheatland for the amount sued for. A judgment for $2064.24 was entered against Wheatland alone and he has appealed.