The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1902-07-23

Judge II. NJ. Edwards yesterday
handed down an opinion and decree In
the equity case of John F. Nolan
against Thomas j. Nolan, Peter Nolan
and William II. Nolan. The opinion
follows:
The co-partncrship in this case was
originally formed in October 1897. by and
between two brothers, John F. Nolan
and Thomas j. Nolan. for the purpose
of carrying on tho business of plumbing,
gasftting and other work Of like ma
ture. In the year 1900 two other brothers.
William and Peter Nolan. we're taken
into the firm on certain conditions which
need not be explained now. There were
no written articles of partnership The
business seems to have gone on satisfac-
turily for while after the formation or
the new partnership. There were few
disputes between the brothers. but not
of II serious character.
The first important difficulty occurred
about August 1901. when William and
Thomas had Il disagreement. resulting
in Williams leaving the business. Wheth-
or he was prevented from participating
in tho business of the firm by Thomas,
or whether he voluntarily abandoned the
business in consequence of a quarrel Is
not a question OF much Importance. In
view of the testimony I do not think the
conduct of Thomas was IA sufficient eX-
cusc for William to abandon the business.
At any rate, with the exception of a
short time during which William re-
turned To the store or shop as result
of intcrccssion on the part OF John, IT
appears that William has done no work
in connection with the firm since August,
1901.
Tho two members of the firm who ac-
lively conducted aud apparently con-
trollcd the business are John Nolan. the
plaintiff. and Thomas Nolan. one of the
defendants. They also constituted the
original firm. Several disputes during the
year 1901 between these two brothers
resulted in Il substantial severance of
their partnership relations in December
of that year. Since then John ceased ac-
tive work, the kind of work he used to
perform. but he continued to collect bills
and to exercise the rights of a partner
until some time in March, 1902. There
we're some attempts at settlement
made previous to the filing of the bill
in this case. but they failed. because,
according to Thomas contention, John
asked an cNorbitant price for his inter-
est in the business. Without discussing
the merits of the various claims charges
and counter charges made by the broth
clearly appears from the evidence:
JUDGES FINDINGS.
l. That there must be a decree dis
solving the partnership. This Is con-
ceded by counsel on both sides; but.
whether conceded or not there are
abundant grounds for such decree. 1t
may be based on the evident improba-
bility of the partners ever being able
to carry Oh the business without con-
stant ularrels, thereby endangcrng the
business of the firm: or, on the aband-
onment of the business by William and
the partial abandonment by John, or on
account Of the final severance of all
partnership relations between the broth
ers at the end of March. 1902.
>. 1t would appear that the co-part-
nership should he considered dissolved
as of April 1. 100! Nolan Brothers ceas-
ed doing business at that time. Since
then the business has been carried OH
by Thomas j. Nolan in his own name.
Nevertheless. VIC cannot limit the rights
of the parties nor the powers of the re-
ceivcr by the in,erlocutory decree dis
solving the co-partncrship, although the
date mentioned would be a convenient
point at which to end and wind up the
affairs OF the firm.
Now, July -. 1902, after considering the
evidence in this case, It is ordered. adj
Judged and decrccd that the co-partncr-
ship, heretofore existing between John.
Thomas. William and Peter Nolan, un-
der the firm name of Nolan Brothers be
and the same is hereby dissolved
We deplore the necessity for the ap-
rointnent of a receiver. At one Of the
hearings in this case before my colleague
Judge Kelly. 1t was suggested that the
parties avoid the expense of Il receiver
ship by having the defendants, meaning
Thomas Nolan, wind up tn,
affairs of the firm. security to be given
to pay any balance that might be due
to the partners. An order allowing this
to be done was made but the parties
failci to agree on the amount of the bond
and the arrangement failed of consummn-
ton. We still suggest the same plan
as tie most economical and the lest
for Tie interest of all the partners. 1t
also answers the purpose of IL receiver
shin. If the parties should vet agree to
such an arrangement the order for the
OF ii receiver may be re-
Nokcd by agreement.
Under tho present circumst ances the
only alternative left to us is to appoint
II receiver. The appointment of re-
ceiNcr rests in tho sound discretion of
tho court. No positive or unvarying rule
can be laid down as applicable to all
eases. In exercising it's discretion the
court Snould proceed cautiously and
should be governed by Il view of the
whole circumstances of the case: Beau
mont VS.. Beaumont. 1866 Pa 6l5
PARTNER AS RECEIVER.
We are also convinced that 1t is proper
In this case to appoint one of the part
ners as receiver. John and Thomas are
the two partners who are the best quail
fed for the position. We can find moth
Ing in the evidence which would Justify
a charge of misconduct against either
one. 1t Is true that John failed in his
full duty to the firm since December last
and that Thomas at the end of last
March severed the partnership relations
and thus contributed to complete the eN-
rlusion of the other partners, especially
John and William. But we look upon
this action of Thomas as a natural con-
sequence of the attitude of the other
partners.
On account of Thomas ]. Nolan's ex-
perience and his greater knowledge of
The business of the firm. especially dur
Ing the first three months of this year,
we are of the opinion that on the whole
the interests of the partners will be best
subserved by his appointment as receiver.
And now, July -, 1902, upon considera-
tion of the bill, answer and testimony, 1t
Is ordered and decreed:
!. That Thomas ]. Nolan be and he is
hereby appointed receiver Of all the as
afa af lata