Painter v. Painter

VAN DYKE, J.

This is an appeal by defendants from an order authorizing and directing A. 0. Colton, as receiver of the firm of Painter & Co., in the said cause, to pay the judgment rendered in the superior court of the City and County of San Francisco, in favor of the J. B. Painter Company, as plaintiffs, against A. 0. Colton, said receiver, as defendant, in the sum of $11,085.73, and to sell sufficient of the real and personal property of the said firm of Painter & Co. to pay said judgment. The court found that from October 1, 1865, to February 6,1883, Jerome B. Painter and Theodore P. Painter were partners, under the style of Painter & Co. On February 6, 1883, Jerome died, and thenceforward Theodore has

been,

and now is, the surviving and only partner of said firm. The J. B. Painter Company is, and since September 21, 1894, has been, a corporation. On December 13, 1894, A. O. Colton became, and ever since has been, the duly appointed and qualified and acting receiver of said firm of Painter & Co., appointed by the court on plaintiffs’ application in the action

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now pending in said court. The order of appointment was for the receiver “to take immediate possession of all the books, papers, vouchers, securities, and of all the property of every nature and kind belonging to the firm of Painter & Co., and thereafter to hold, manage and control the business and property of said firm, . . . and generally to do such acts respecting the property as the court may from time to time authorize, and finally to dispose of the same as the court shall direct.” It appears also that the assets of the firm consisted, among other property, of a plant for the manufacture and sale of type and printers’ materials, solvent credits, real estate in San Francisco, and the right of publication of Langley’s San Francisco Directory, and it was found by the court that the compiling and publishing of this directory was a part of the business of the firm intrusted to the receiver. Part of the business relating to the manufacture and sale of printing materials was conducted by the receiver at a loss, and was discontinued in 1895, but the publication of the directory he conducted for several years, and until 1894, inclusive, at considerable profit. In December, 1894, the receiver found himself without means sufficient to publish the directory for 1895, and thereupon filed a petition in said cause for authority to accept an offer of said J. B. Painter Company to publish said directory for the year 1895 under direction of the receiver, and to authorize the receiver to enter into a contract with said corporation for said purpose and on the terms proposed by it. Notice was duly served upon the attorneys for the plaintiffs and defendants in said action, together with copies of the affidavits and papers on which the motion would be made. On January 11, 1895, the court made an order granting the receiver’s petition, and on January 18, 1895, the contract referred to was duly made and executed pursuant to the order of court. It is further found that the corporation performed all the conditions of its contract, in the course of which, and “in accordance with the terms of said contract, loaned and advanced to said receiver all the funds necessary for the compilation and publication of Langley’s Directory,” and a full and detailed statement of the money advanced and money received by the corporation is set out in the findings, showing advancements in excess of receipts amounting to $8,316.56 principal, on which, as interest on the same by the