Opinion
06-30-1887
SEMPLE. v. FLYNN and another.
Alfred Hugg, for complainant. C. E. Hendrickson, for defendant.
Bill for relief.
On December 5, 1885, Semple and James D. Flynn entered into an agreement for the purpose of carrying on the saloon and restaurant business at Mount Holly, New Jersey. Semple was to furnish the money to buy the necessary fixtures and chattels with which to run the business, while Flynn was to take charge of and conduct the business; it being run in his (Flynn's) name. Out of the proceeds arising from the earnings an equal division was to be made between the two. Semple bought the fixtures for $1,200, paying $850 in cash, and giving a chattel mortgage of $350 for the balance. Flynn agreed to pay $250 to Semple, and take up the $350 mortgage in the spring of 1886. Flynn paid Semple the $250, and took up the $350 mortgage, giving a $300 one in place of it, and, according to the charge of the complainant, has refused to cancel or pay off the $300 mortgage. In November last, Flynn refused to further divide the profits. The complainant also charges that the defendant fraudulently, and without any consideration, in February, 1887, gave a second chattel mortgage on the fixtures to his brother John J. Flynn for the alleged securing of the payment of $500. The bill asks for an accounting since last November, the appointment of a receiver to continue the business until the complainant is paid the money he advanced, and the restraining of the selling or transferring of the second mortgage. The defendant denies part of the agreement respecting the payment of the chattel mortgage, and also claims that the $850 advanced by Semple was loaned to him, and that he has since paid Semple the amount in full; that the mortgage was given to his brother to secure moneys advanced by the said brother. The cause was heard on bill, answer, and proofs, on motion for receiver and preliminary injunction.
Alfred Hugg, for complainant. C. E. Hendrickson, for defendant.
BIRD, V. C. In this case I am asked to appoint a receiver to take possession of goods and of a business which the complainant claims are held and used in partnership. I cannot advise such appointment.
1. It is not at all established by the proofs, by way of affidavits, that there is or ever was a copartnership. There are many circumstances tending to show that a partnership was never intended.
2. If there ever was a copartnership, the presumption, from several circumstances,is that it was broken and abandoned according to its original terms, and such settlement had as to preclude the complainant from any further claim on the goods or interest in the business as a partner.
3. These things being so, no sufficient cause appears to justify the court in taking the goods, and the business, too, out of the hands of the defendant, to whom it was originally committed, when so to do would totally destroy the business, and that necessarily, because such business is carried on under a license, which, of course, is personal to the defendant, and cannot be delegated nor assigned nor committed to the care of a receiver by any court. Before the court will take a step which will work such results, it must be reasonably certain that the allegations upon which relief depends are true.
4. But I will advise an injunction restraining the defendant from selling, assigning, or incumbering any of the goods, chattels, or fixtures now in use in said business, or the said business itself, or the good will thereof,—not, however, to restrain him from managing and carrying on said business in the ordinary way in which he has heretofore been carrying it on during the continuance of the alleged copartnership. I feel justified, under the proofs, in going thus far in the interests of the complainant, but no further. This will preserve the present status until final hearing. Costs to abide final decree.