Reid v. Freed

Mississippi Supreme Court
Reid v. Freed, 100 Miss. 48 (Miss. 1911)
56 So. 278
Whiteield

Reid v. Freed

Opinion of the Court

Whiteield, C.

With respect to the discharge of the receiver, we are of the opinion that the conrt erred in discharging the receiver. The testimony rather makes the impression upon ns, taken as a whole, looking to the entire correspondence, that Welch was not inveigling Freed into the contract set out in the record, but that the contract was sought by Freed himself. It would rather seem that Freed was depreciating Peterson, and trying to get Welch to take him in Peterson’s place, and this was the result accomplished. It is further clear, from the evidence, that Freed put no money into the venture, and that, after the lapse of about five months only, Welch had furnished a gross amount of over eight thousand dollars, subject to certain credits which would reduce the amount to something like five thousand dollars.

The grounds on which the receiver was applied for are many. For example: That timber had been purchased by Freed without the consent of the appellants; that Freed made continuous demands for money, which finally aggregated, as stated, over eight thousand dollars; that the expenses were largely in excess of the gross income from the mill; that moneys furnished had been improperly used by Freed; that the store operated by Freed had been operated without the con*56sent of appellants, and at a loss; that Freed did not furnish Welch proper pay rolls on the basis of which to settle with the hands; and that Freed himself had no money with which to pay off the hands or run the business. Now Freed, in his answer, expressly admits that he had not sufficient money for these purposes, and that he was in possession of the mill and its equipment at the time of the filing of the original hill; and yet he refused to deliver the possession of the property to complainants, appellants here, that they might operate it. Furthermore, although this record, so far as the bookkeeper is concerned, is a jumble of confusion, it nevertheless -does appear, with sufficient clearness, we think, that the books, as kept by Freed, were not kept in any proper manner. It is shown that Freed was taking goods out of the mercantile establishment and using them himself, without, as alleged, properly accounting for. them, and that he failed to pay hands their wages, and that dissatisfaction thereby was created and the safety of the business was imperiled. It is also worthy of note, in this connection, that in the final decree, which set aside the receivership, there is no order whatever directing what disposition should he made of the property in possession of the receiver. It was not directed to he restored to the possession of Freed, and we think it was highly proper that no such order was made, in view of the condition of the affairs of the partnership at the time of the decree, and the manifest impossibility of these partners, the appellants and the appellees, continuing in harmonious and successful operation of the business. On the whole ease, so far as the receivership' is ■concerned, we think the court erred in setting aside the receivership, and that a receiver was necessary to administer this business and settle the rights of the parties under the orders of the court.

Turning, now, to the matter of accounting: We have rarely seen the report of any master involved in as much *57obscurity aud confusion. It would seem that crediting' Freed with one hundred nine dollars and ten cents, instead of deducting’ that sum from the amount of his individual account of two hundred seventy-nine and eighty-three cents, which would have left Freed indebted to appellants to the extent of one hundred and seventy dollars and seventy-three cents, was an erroneous credit; and it would further seem that crediting Freed with eight hundred and twenty-one dollars and thirty-four cents is also-erroneous. It would further seem that the credit given Freed on the commissary stock turned over to the receiver, of one hundred and fifteen dollars, should not have been allowed, since he had already been credited with the-same in the merchandise account. It would appear to be a double credit. It is difficult, also, to understand how Freed could have been credited with twelve hundred and fifty dollars for his services, when, as we understand it, Freed was to contribute those services to the partnership, as against the capital put in by the appellants. We have used the expression, in'respect to all the items we have noticed, “it would seem,” and we have done this purposely, because it is impossible for us, on this unprecedently confused and jumbled accounting, to . say with any certainty what part of the master’s report is correct and what part is incorrect. ' We prefer, without holding* that these items which we have discussed were improperly allowed, to reverse the decree of the chancellor altogether on the accounting, and remand the cause, with instructions to have a competent master employed, and to have-stated clearly and intelligently the state of the accounting, so that an inspection of it will enable the chancellor and this court, if it should become necessary for this court again to deal with the case, to pass upon it satisfactorily. When an accounting is ordered by a chancellor, he has the amplest power to refer it to a proper master, to take and state the account, etc. — the amplest power to authorize that master to employ all proper expert *58accountants, and to take evidence with respect to the items of the account; and the chancellor should see to it, diligently, that the account as finally made and presented to him should be free from confusion, and, where facts are found by thg master, the findings, and the reasons for the findings, if necessary, set out clearly and fully, so that on the face of the report there shall be clearness, and not confusion. The accounting in this case is one that it is impossible to understand on the record as now presented; one that is not intelligent; one on which the mind of this court cannot rest, with any satisfaction as to what items ought or ought not to have been allowed to the one side or the other.

We are clear that this partnership should stand dissolved, and that far the action of the chancellor was correct. But he should have retained the receiver and referred the accounting again for a proper statement and an intelligible report by the master.

Reversed and remanded.

Per Curiam. The above opinion is adopted as the opinion of the court, and for the reasons therein set out the decree setting aside the receiver is reversed, and the receiver is retained for the further administration of the matters involved under the direction of the court; and the decree is further reversed entirely as to the whole matter of accounting, and the chancellor directed to refer all the matters 'of accounting to a competent master, to restate the account and report thereon. The decree awarding damages in the sum of twenty-two hundred and sixty-seven dollars and sixty-seven cents is reversed and set aside, since this matter of damages, attorney’s fees, etc., must wait a proper accounting.

Reference

Full Case Name
W. W. Reid v. C. E. Freed
Cited By
2 cases
Status
Published
Syllabus
1. Partnership. Dissolution. Receiver. Accounting. Where two partners, owning timber land and a sawmill, formed a partnership with a third party, who had no capital, but who was to operate the mill, share in the net profits, and account with the owners, and the third partner purchased timber without the consent of the others, operated a store without their consent and at a loss, caused the expenses to be largely in excess of the gross income from the mill, improperly used money furnished by his partners, failed to furnish proper accounts or pay rolls as a basis of settlement with the employees, and refused to deliver up the possession of the mill to his partners, and the two original partners filed a bill in chancery against the third partner praying the appointment of a receiver, the dissolution of the partnership and an accounting between the parties, held, that the partnership should have been dissolved and an accounting had and that a receiver was necessary to administer the business and settle the rights of the parties under the orders of the court. 2. Same. Where in such ease the report of the master appointed to take and state an account between the parties is obscure, confused, and so unintelligible that the court cannot pass upon it satisfactorily, the matter of accounting will be referred again for a proper report.