Bryant v. Fitzsimmons

Briscoe, J., delivered the opinion of the Court. The bill in this case was filed on the 6th of August, 1906, in the Circuit Court No. 2, of Baltimore City, by the appellees, against the appellant. The prayer of the bill is first, for the appointment of a receiver to take charge of alleged partnership property ; second, for an injunction to restrain the sale and disposition of the property by the appellant pending the decision of the case; and third, that the partnership may be dissolved, an account be taken of its business, and its effects be applied to the payment of its debts and liabilities, and the ⁴²² residue be distributed among the partners according to their respective interests. The Court below ordered an injunction and appointed Mr. Wm.

J. Ogden, a member of the Baltimore bar; as receiver, with power and authority to take charge and possession of the partnership property and to collect the outstanding debts due the partners. The bill, in substance, alleges that on May 2nd, 1906, the appellant and appellees entered into an agreement to purchase a certain race horse, called “Wild Range” to be the joint property of the three, at the sum of seven hundred dollars. The horse was purchased from one Robert Davis upon the following terms: the appellant, Bryant, paying $250 in cash, and giving to Davis the joint note of himself and the appellee, Cherbonnier, for $450 payable ninety days after May 2nd, 1906. The appellee, Fitzsimmons, at the time of the purchase, deposited certain pawn tickets and other collaterals, covering property alleged to be, worth three hundred and fifty dollars, to secure his portion of the cash advanced, and the payment of the note, at maturity.

The bill also alleges that according to agreement between Ithe parties, the horse was to be the joint property of the appellant and appellees, each of them owning a one-third interest. The appellee, Fitzsimmons, was to take full charge, and race the horse for purses, according to his judgment, and after the payment of the necessary expenses, the profit or money realized, was to be applied first, to the payment of the note of four hundred and fifty dollars, and to the cash advancement of two hundred and fifty dollars heretofore stated, and the residue to be divided, one-half to the appellee, Fitzsimmons, and the other half to the two parties, Bryant and Cherbonnierj in .equal parts. ■ The.bill then charges that the appellant, in violation of the agreement with the partners, has collected the purses and money realized from the horse, to the amount of nine hundred and fifty dollars, and now retains the sum of five hundred and sixty-five dollars, which under their agreement should be ap ⁴²³ plied to the payment of the note of four hundred and fifty dollars, due and payable on August 6th, 1906. The bill also charges that the appellant without notice and without the knowledge of the appellees, has forcibly taken possession of the horses “Wild Range,” “Officer” and “Dairy Maid” and intends to dispose of them to the loss and damage of the appellees; that the note due on the 2nd of August has been protested and remains unpaid, although the appellant has sufficient funds belonging to the partnership to pay the same. On the 21st of August, 1906, after the appointment of the receiver, an answer was filed by the appellant, denying the partnership agreement alleged by the bill, and averring in substance that the three horses in question were purchased by him alone and were his absolute property.

The case was heard on bill, answer and testimony on a motion to dissolve the injunction, and from an order of Court passed on the 21st of February, 1907, dissolving the injunction, as to the two horses called