Pentecost v. Ray

106 S.E.2d 467 (1959)

249 N.C. 406

R. M. PENTECOST v. Lonnie RAY.

No. 745.

Supreme Court of North Carolina.

January 14, 1959.

Thomas C. Carter, Burlington, Clarence Ross, Graham, Lee W. Settle, Mebane, for defendant, appellant.

W. D. Madry, T. Paul Messick, W. R. Dalton, Jr., Burlington, for plaintiff, appellee.

HIGGINS, Justice.

If the order appealed from is permitted to stand, the cause has made a circuit through the legal steps set forth in the statement of fact and is now only a few degrees off the position it occupied when Judge Sharp ordered it referred. The court has been spinning its wheels for almost four years. The new order of reference injects new questions into the cause and opens the door for a jury trial as to matters the plaintiff has sought to inject by unsuccessful attempts to amend his complaint. The present situation is this: The plaintiff sued for dissolution and accounting. The defendant denied the partnership. The court ordered a compulsory reference. The referee found a partnership existed, determined the amount each partner contributed, and the amount the plaintiff was due the partnership. The referee found that the partnership had an operating loss of more than $4,800.00, and that the plaintiff was entitled to a dissolution and to an accounting. The report was confirmed and no exceptions taken. Receivers were appointed, consisting of an attorney of record for each party. The receivers sold the assets, collected the accounts, and reported to the court.

Each partner is responsible to the partnership for what he takes from it as long as it exists. When the partnership is dissolved, either by the partners or by the court, the partners are responsible to each other for an accounting. Casey v. Grantham, 239 N.C. 121, 79 S.E.2d 735. In this case, when the court appointed receivers to take over all the assets of the partnership, to liquidate them, and to report to the court for further orders, the partnership was thus at an end. The partnership property was in the hands of the court. If the receivers did not take over all the partnership property, the remedy is to send them back for it or to have its loss accounted for. The court may then make distribution. There is nothing in the record to warrant a further reference. The superior court should pass on the report of the receivers and make distribution if the report is approved. If it is not approved, the court should instruct the receivers what further action they should take in order to complete their duties.

To the end this may be done, the order appealed from is set aside. The case is remanded to the Superior Court of Alamance County for disposition as indicated.

Reversed.