Johnson Cotton Co. v. Reaves , 225 N.C. 436 ( 1945 )

Winborne, J.

Let it be noted at the outset that the procedure followed in the court below is not questioned by any exception presented in this Court on either the appeal of plaintiff or that of defendant Whitehurst. Hence, we go directly to questions presented:

1. ON Plaintiee’s Appeal :

The questions involved relate in the main to the refusal of the court (1) to require the production of the records of the partnership of White-hurst and Reaves, and (2) to permit the examination of Reaves relative to the sale of all the 250 cars of potatoes sold by the partnership in 1943, and not just those 86 cars involved in the suit of Whitehurst & Reaves v. FCX Fruit and Vegetable Service, Inc., et al.

Where the examination of the debtor shows that his books of account contain evidence material to the investigation he should be required to produce them, Coates v. Wilkes, 92 N. C., 376. And the court .has the power to order the production of proper papers pertinent to the issue to be tried, and in the possession of the opposite party. McDonald v. Carson, 94 N. C., 497.

This being a supplemental proceeding under Article 31 of chapter 1 of General Statutes, equitable in its nature, Carson v. Oates, 64 N. C., 115; Righton v. Pruden, 73 N. C., 61; Rand v. Rand, 78 N. C., 12; Bronson v. Ins. Co., 85 N. C., 411; Coates v. Wilkes, supra; Munds v. Cassidey, 98 N. C., 558, 4 S. E., 353, and all the parties being before the court, it appears that in the court below the focal issue was the ascertainment of the J. H. Reaves interest in the assets of the partnership of Whitehurst & Reaves, if any, which remained after the partnership debts have been paid and the partnership affairs adjusted. The plaintiff, as judgment creditor of J. H. Reaves, and assignee of his interest in the proceeds of tbe judgment against FOX Fruit and Vegetable Service, Inc., el dl., can only reach J. H. Reaves’ interest in so much of the assets of the partnership of "Whitehurst and Reaves as remains after the partnership debts have been paid and the partnership affairs adjusted. See Tredwell v. Rascoe, 14 N. C., 50; Jarvis v. Hyer, 15 N. C., 367; Price v. Hunt, 33 N. C., 42; Latham v. Simmons, 48 N. C., 27; Roberts v. Oldham, 63 N. C., 297; Ross v. Henderson, 77 N. C., 170; Mendenhall v. Benbow, 84 N. C., 646; Sherrod v. Mayo, 156 N. C., 144, 72 S. E., 216; 40 Amer. Jur., 447, Partnership, sec. 455.

And in order to ascertain if there are any assets of the partnership so remaining a full accounting of the partnership affairs is appropriate, and should be had. Plaintiff is entitled to have all the assets of the partnership ascertained and taken into account in striking a balance between assets and liabilities. Therefore, the records and the evidence relating to the sale of all the 250 cars of potatoes are pertinent, and there is error in refusing to require the production of the records, and to permit the examination in those respects. See Coates v. Wilkes, supra, and McDonald v. Carson, supra.

2. ON Defendant’s Appeal :

The only question here presented relates to matters of cost. As there is error on plaintiff’s appeal, such matters are presently eliminated from consideration. Plaintiff will pay the costs of this appeal to be recovered by it if it should ultimately prevail.

On both appeals,

Er'ror and remanded.