Swanton v. Jacks

RICHARDS, J.

This is an action brought for the dissolution of a partnership, and for an accounting between the parties to it, and for the recovery by the plaintiff of such sum as should be found due him thereon. The complaint sets up in full the articles of copartnership, from which it appears, in substance, that the parties were to engage in the business of giving aeroplane exhibitions in various parts of the country, and that as a preliminary thereto the defendant was to proceed to France, taking with him a man who was to be instructed there in the art of aviation; that the defendant was, while there, to inspect and purchase one or two aeroplanes for use in said exhibitions; that in order to meet the expenses of the trip each of the parties was to put up the sum of five hundred dollars, and which the defendant was to receive at

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the time of his departure for France; that each of the parties was to contribute the additional sum of four thousand five hundred dollars, which was to be placed in the hands of a trustee named in the agreement as soon as the defendant should have selected for purchase said machines; that thereupon the said trustee was to forward to said defendant such sum up to eight thousand dollars as would cover the purchase price of said machines; that the balance of the fund in the hands of the trustee was to he dispensed in arranging for and advertising the exhibitions.

The complaint then proceeds to aver “that from the commencement of said partnership said defendant has willfully neglected the business of said partnership, and to carry out the purposes for which it was formed, and has from time to time applied to and converted unto his own use and benefit from moneys belonging to said partnership and constituting the capital thereof, large sums of money, to the detriment of said partnership and the injury of said plaintiff.”

In the answer of the defendant the making of the partnership agreement is admitted, but the above-quoted averment of the complaint is denied, and the defendant further affirmatively sets forth the several acts and expenditures on his part in furtherance of the objects and execution of said agreement.

Upon the trial of the cause the court found the agreement to have been made, and that under its terms the plaintiff had intrusted to the defendant the sum of three thousand three hundred dollars. It then found, in the terms of the above-quoted allegation of the complaint, that the defendant had willfully neglected the business of said partnership, and willfully neglected to carry out the purposes for which it was formed, and had converted to his own use and benefit two thousand eight hundred dollars of the said moneys so intrusted to him by plaintiff; and the court further found that upon an accounting between the parties there was due, owing, and unpaid to the plaintiff from the defendant the sum of two thousand eight hundred dollars. The court then entered judgment for a dissolution of the partnership and for the recovery by plaintiff of the said sum.