Lewis County NyArchives Court.....Wilcox, Joseph Vs. Harriet Pratt 1889
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Source: Reports Of Cases - New York
Written: 1889

Fourth Department, May Term, 1889.

JOSEPH H. WILCOX and WARNER MILLER, Respondents, v. HARRIET PRATT, Appellant.

Partnership — exclusion of one party from connection with a joint undertaking — 
equitable relief — receiver — effect of a transfer, by the party excluded, of 
part of his interest.

The defendant in this action, owning a large tract of land, entered into a 
contract with the plaintiff Wilcox with a view to cutting the timber thereon and 
making sales thereof, by the terms of which the plaintiff was to advance $5,000 
and the defendant $20,000, all expenses of cutting, removing and selling the 
timber, together with all moneys advanced, were to be repaid from the proceeds 
of sales, and as soon as said sums were paid, together with the further sum of 
$26,000 and interest to be paid to the defendant, it was agreed that the 
defendant should convey to the plaintiff an undivided half of the tract of land.

The parties entered upon the execution of the business contemplated by their 
contract, and carried it on until January, 1888, when the defendant served upon 
the plaintiff a notice that the copartnership was dissolved and the business 
would thereafter be carried on by the defendant; and the defendant thereafter 
excluded the plaintiff from all connection with or control over said property or 
business. At this time about one-half of the timber growing on the land had been 
cut off and the remainder was still standing thereon.

In an action, brought by the plaintiff to obtain equitable relief in the 
premises:

Held, that whether the agreement created a partnership or simply a joint 
enterprise, that a proper case was made for the appointment of a receiver.

That the fact that the plaintiff had transferred a part of his interest to a 
third party, and had pledged the other part thereof to such party by way of 
collateral security, did not justify the defendant in excluding the plaintiff 
from all connection with or control over said property and business.

Appeal by the defendant from a judgment entered in the Lewis county clerk's 
office June 12, 1888, upon a decision made at Special Term, held April 26, 1888, 
in that county.

Walter Ballou, for the appellant. 

C. D. Adams, for the respondents. 

Hardin, P. J.:

Upon the evidence produced before the trial court it is very evident that the 
case was one for equitable cognizance. (Whiton v. Spring, 74 N. Y., 169.)

Defendant, owning 15,225 acres of land in the county of Herkimer, entered into a 
contract with the plaintiff Wilcox for the purpose of cutting the timber thereon 
and making sales, with a mutual agreement that the respective parties should 
contribute money and carry forward the contemplated enterprise with the 
respective sums of money mentioned in the contract. Wilcox was to advance, 
$5,000, and the defendant was to advance $20,000 in money or credit for the 
purpose of carrying on said business. It was provided in the contract, 
viz.: "That all expenses incurred in cutting, removing, selling and disposing of 
such timber, bark and spars and spiles, together with interest on all moneys 
received as advances, and all indebtedness incurred, connected with or growing 
out of said business, including all taxes assessed or which may hereafter be 
assessed thereon, shall be paid in full from the proceeds of such sales; and as 
soon as said several sums shall be paid in full, together with the sum of 
$26,000, with interest thereon from the date hereof, from the proceeds of such 
sales as aforesaid, shall be paid to the said Harriet Pratt, then, and in that 
case, said Harriet Pratt agrees to convey to Joseph H. Wilcox, by good and 
sufficient deed, an undivided one-half part of said tract of land."

The plaintiff Wilcox and the defendant entered upon the execution of the 
business contemplated by their agreement and carried it forward until, in 
January, 1888, the plaintiff giving "his services and attention to the detail 
thereof, and it was so conducted and carried on by the parties jointly." On the 
twelfth of January the defendant served upon Wilcox a notice "that the 
copartnership heretofore existing between Harriet Pratt and Joseph H. Wilcox has 
been dissolved, and the business hereafter will be carried on by her."

It is found, as a fact, that the defendant "has had the exclusive possession and 
control of all the personal property and assets of said firm of Pratt & Wilcox, 
down to the commencement of this action, * * * and has excluded the plaintiff 
from all connection with or control over said partnership property or business, 
and absolutely refused to allow him to participate in said business or in 
conducting and carrying on the same in any manner whatever."

It appears that about one-half of the timber growing on the lands at the time 
the contract was entered into has been cut off, and the remainder is standing 
thereon. We are of the opinion that the conduct of the defendant warranted the 
plaintiff in seeking relief from a court of equity, and we think the language 
used by Ruger, Ch. J., in King v. Barnes (109 N. Y., 285), is pertinent to the 
case in hand. He said: "It is entirely immaterial whether this agreement 
constituted a partnership in a technical legal sense, or whether it was a joint 
enterprise to be conducted by the parties for their mutual benefit. So far as 
their rights and liabilities are concerned in this case, the result is the same, 
and rests upon the express terms of the agreement, and they are now to be 
enforced upon the principles applying to partnership transactions. (Dyckman v. 
Valiente, 42 N. Y., 285.)"

We think a proper case was made for the appointment of a receiver, and the 
proper directions were given to him in the premises.
 
(Heatherton v. Hastings, 5 Hun, 460.)

In Hubbell v. Buhler (43 Hun, 84) it was said that where there was an agreement 
for a joint adventure, "it must necessarily be implied that the understanding 
was that the partnership, or joint adventure, was not determinable at the will 
of any one of the partners, but that it was to continue until the single 
enterprise undertaken should be concluded." That case differs very essentially 
from the one before us.

We are of the opinion that the transfer by Wilcox of a part of his interest to 
the plaintiff Miller, and the pledging of the other part thereof to him as 
collateral security, did not warrant the defendant in excluding the plaintiff 
Wilcox "from all connection with or control over said partnership property or 
business," as found in the fourteenth finding of the trial court. In partnership 
cases a disagreement among partners has often been the occasion for the 
appointment of a receiver with directions to carry on the business, or to close 
it out according to the best interests of the parties concerned. (Marten v. Van 
Schaick, 4 Paige, 479; Jackson

v. De Forest, 14 How. Pr., 81; Smith v. N. Y. Consolidated Stage Co., 18 Abb., 
433.)

We are of the opinion that the facts appearing upon the trial warranted the 
exercise of the judicial discretion of the court in the direction which it took 
in awarding the costs of the action to the plaintiffs.

The judgment should be affirmed, with costs.

Martin and Merwin, JJ., concurred.
 
Judgment affirmed, with costs.

Additional Comments:
Reports of Cases Heard and Determined in the Supreme Court of the State of New 
York. Marcus T. Hun, Reporter. Volume LIX, 1889, HUN 52. Banks & Company, 
Albany, NY. 1901.

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