Simonton v. Sibley/Opinion of the Court

The object of this bill is the settlement of the accounts of a partnership, the members of which were Sibley, Simonton, and the firm of Lancaster, Brown & Co. By the original agreement in writing, dated June 19, 1872, which took the place of articles of partnership, the partnership property was to consist of a large quantity of bonds and stock of the Western North Carolina Railroad Company, previously held by Sibley. Simonton bought one-half of Sibley's interest therein for the sum of $135,633, and Lancaster, Brown & Co. boughtone-fourth of Sibley's interest for $67,817. Sibley was to hold the same as collateral security for the payment to him of those sums. The whole amount of the bonds and stock was to be held together, and neither partner was to sell or dispose of the whole or any part of his interest without the consent of his copartners; but there were provisions authorizing Sibley to sell the whole property of the partnership, which will be considered presently.

Early in November, 1872, Sibley made a contract with Wilson to sell him the Western North Carolina Railroad bonds and stock, belonging to the partnership, for $100,000 in stock of the Southern Railway Security Company, which Wilson transferred to him, and $270,000 in cash, which Wilson did not pay; and in the latter part of October, 1874, Sibley sold the Western North Carolina Railroad bonds and stock to Matthews for the like sum of $270,000 paid in cash, with a stipulation that Sibley should retain the $100,000 of Southern Railway Security stock that he had received from Wilson. Sibley never received any money from this stock, except one cash dividend of $3,500. The master has treated this stock as partnership property, and has charged Simonton's estate with his aforesaid debt to Sibley of $135,633, and interest, and credited him with $136,750, half of the sums received by Sibley in cash as aforesaid, showing, with the interest and expense account, a balance due Sibley of something more than $14,000.

The argument of the appellant, that Sibley should have been charged with the $100,000 of stock of the Southern Bailway Security Company at its par value, is based upon the theory that Sibley, in selling the partnership property, acted, and was authorized to act, only as a creditor of his copartners, and not as a partner on behalf of the partnership. It cannot be denied that some of the provisions of the original agreement of partnership are consistent with this theory. The agreement provides that Sibley 'shall have the privilege of selling the whole amount of both bonds and stock at his discretion at any time, and apply the proceeds to the payment of the said sums due to him.' If this were all, there might be some difficulty in construing Sibley's authority to sell as absolute and unqualified; and his 'privilege of selling' might perhaps be considered as so coupled with a duty to 'apply the proceeds' of any sale 'to the payment of the said sums due to him;' that he would be bound, if he sold the property, to apply the proceeds at once to the payment of those sums.

The agreement of June 19th next provides that Sibley may, if he thinks best, proceed to foreclose the mortgage by which the bonds were secured; 'and whatever the proceeds of said foreclosure may be, or, if the bonds are sold, whatever the net proceeds of the sale may be, after payin the said sums of money and expenses of foreclosure, they shall be considered as due to each party in proportion as the bonds and stock are now held.' This provision, again, if it had stopped here, might possibly have been understood as intended only to affirm the right of the partners to share, according to their respective interests, in the proceeds of either a foreclosure or a sale; the debt to Sibley, as well as the incidental expenses, being first paid out of those proceeds.

But this provision goes on, and ends with these words: 'But may be held by Hiram Sibley as collateral security for the payment of the aforesaid sums, respectively.' This clause, taken in connection with what goes before, cannot possibly mean that it is only the net proceeds, after deducting out of them the sums due to Sibley from his copartners, together with the incidental expenses, in the event of a foreclosure, or after deducting the sums due him from his copartners in the event of a sale, that are to be held by him 'as collateral security for the payment of the aforesaid sums, respectively;' for, after an application of the proceeds of a sale to the payment of those sums, either those sums would have been wholly paid if the proceeds were sufficient to pay them, or, if they were insufficient, no proceeds would remain to be held as collateral security. The only reasonable construction of the clause is that Sibley, instead of immediately applying the proceeds, either of a sale or of a foreclosure, to the payment of the debts of his copartners to himself, may hold the whole proceeds, just as he previously held the bonds and stock, as collateral security for the payment of those debts, leaving the title to the proceeds after the sale of foreclosure, as the title to the bonds and stock was before, in the partners, respectively, in the proportions determined by the partnership agreement.

The supplemental agreement of June 20, 1872, also making special provisions for the distribution of 'any profits arising from the sale, foreclosure, or any other disposition of said bonds,' clearly implies, by the use of the word 'profits,' that any sale by Sibley might be made by him as a partner on behalf of the partnership, and not merely as a creditor enforcing his collateral security. The view that the partnership agreement empowered Sibley to sell the property as managing partner, independently of his right as a creditor, is confirmed by the terms of the power of attorney given him by his copartners on October 3, 1874, by which they recited that they had 'heretofore left to him the management of the adventure,' and authorized and requested him, either to prosecute the proceedings for foreclosure, 'or to take such other action, by sale of bonds or otherwise, as may in his judgment appear for the best interest of all concerned.'

The Southern Railway Security Company stock is now worthless; and it is not proved, nor even contended, that Sibley neglected any opportunity of selling it, and turning it into money. The only exception to the master's report relied on at the argument was that the master had not charged Sibley with this stock at its par value, and interest. Upon the true construction of the partnership agreement, and the proofs in the case, this exception was rightly overruled by the circuit court, because this stock was never received by Sibley as cash, or accepted by him as his own property in part payment of the sums due him from the other partners, but was received and afterwards held by him as property of the partnership, belonging to all the partners in the proportions stipulated in the original agreement.

The further objection has been taken for the first time in this court that the bill cannot be maintained, because the evidence shows an account stated between Sibley and Simonton, on which an action at law would lie. It is a sufficient answer to this objection that the evidence does not show, and the master has not found, that an account was rendered by the one pat y and assented to by the other, but only that Sibley rendered to Simonton a statement of the account between them, which was not treated by either as an account stated, nor ever agreed to or settled, but remained open at the death of Simonton, and until its truth was established by the evidence in this suit against his executrix to settle the accounts of the partnership. Decree affirmed.