since the same went into operation until the present time, and is still engaged in sawing, and large quantities of lumber sawed therein have been sent to market, and sold by said Wright, the money therefor received by him, and that he is still engaged in sawing and selling the lumber, the products of the said mill, he has hitherto wholly failed to account with complainant for his share of the products of said mill, or of the proceeds of the sales of said lumber, or to pay one cent thereof to complainant, except as before stated, as part of the one-half interest of the complainant in the machinery, labor and materials furnished in the erection of said mill; that complainant has in vain sought a settlement of his share of the said proceeds with the said Wright, who pretends that the expenses of running said mill consumed all the proceeds of the sales of the lumber, and that more money is paid for the running of said mill, in outlay for labor and other pretended charges and expenses, than the amount of the sales of lumber sawed by said mill, and in excess of such proceeds of lumber, to the sum of several thousand dollars; that there is due complainant, as his share of the proceeds of the lumber sold from said mill by said Wright, a large sum of money, subject to no abatement for expenses incurred by said Wright in running said mill, and the precise amount of which can only be ascertained by referring the whole matter to a master or commissioner of the Court to take and state an account of the sum due complainant; that neither party, in entering into the partnership, contemplated any other use of the said mill than to the cypress timber on said tract of land on which it was erected, and the sawing of no other timber on any other tract of land or grown elsewhere; and the said Wright in violation of the contract of partnership, and without the consent of complainant, has ceased to procure cypress timber from the said "Buena Vista" tract of land of the complainant for the use of said saw-mill thereon, and has been for some time heretofore, and now is procuring other cypress timber from other persons to saw, and is sawing the same into lumber on said mill, and thereby defeating one of the objects the complainant had in view in entering into the partnership, to wit: to turn his own cypress timber into productive capital; and that such provision justifies a dissolution of the partnership, and winding up the business thereof. The bill further charges that said Wright, upon a fair settlement of said business, will be found in debt to complainant in an amount so large that he will not be able to pay the same, unless the stock of timber now on hand at said mill or elsewhere belonging to the said Wright, procured from others, and lumber on hand in which he has half interest, and the interest he has in said mill, would be sufficient to pay and satisfy such indebtedness, and which complainant does not believe, and that he is in danger of losing a portion of what is due him. He therefore prays for an injunction to restrain the said Wright and his agents from removing any saw logs, cypress, or lumber belonging to said firm, or to the said Wright, out of the jurisdiction of the Court or from said saw-mill, or from selling the same or any part thereof, and that a receiver be appointed to take charge of said business, and that on the final hearing, an account be taken and stated between complainant and said Wright, and if, upon the coming in of said account and the confirmation thereof, the said Wright be found indebted to the complainant, that a decree be made for the payment thereof, and for a seizure and sale of the interest of the said Wright in the said saw-mill, stock, timber, and lumber thereunto appertaining, to an amount sufficient to pay and satisfy said debt, and that said partnership be dissolved and its affairs wound up under the orders of the Court. On the 29th day of March, 1869, the defendant moved the Court to dissolve the injunction which had been granted in this case on the following grounds: 1st. Because there is no equity upon the face of the bill; 2d. Because no legal bond has been given in this case; 3d. Because the penalty in said bond is wholly insufficient and the surety therein is insolvent. This motion was sustained by the Court without stating upon what ground, and the injunction dissolved. And at the same term of the Court the complainant moved for the appointment of a receiver, which motion was overruled by the Court; and from these decrees of the Court in dissolving the injunction and overruling the motion for the appointment of a receiver, the complainant appeals to this Court. It appears from the affidavit of Wright, that the usual sawing of said mill per day in the best running season was at least six thousand feet; and from his testimony upon the hearing of said motions, that since the mill went into operation in September, 1865, he had sold lumber to an amount betweeen twenty and twenty-three thousand dollars, and that the expenses of running the mill were about thirty thousand dollars, and that he had not bought any timber or saw logs himself, but his wife did buy some saw logs and lumber. The propriety of the action of the Court in dissolving the injunction is impeached by the appellant, and presents the first question for our consideration. The bill of complaint charges that neither party contemplated any use of the said mill than to saw the cypress timber on the complainant's said tract of land, on which the mill was erected, and for the sawing of no other timber, and that the said defendant, in disregard of the terms of the partnership, and without the consent of the complainant, has ceased to procure cypress timber from the said tract of land of the complainant, for the use of the saw-mill thereon, and has been for some time heretofore, and now is, procuring other cypress from other persons to saw, and is sawing the same into lumber on said mill, and thereby defeating one of the objects the complainant had in view in entering into the partnership, and that object was to turn his own cypress timber into productive capital. And this allegation is to some extent, corroborated by the evidence of the appellee, who testified that his wife bought saw logs and timber. This was using the mill in a manner unauthorized by the terms of the contract of partnership, and would justify an injunction, and together with the loss of seven thousand dollars in running the mill for more than three years, would perhaps authorize a dissolution of the partnership. The injunction, therefore, could not have been properly dissolved for the want of equity on the face of the bill. But it must be conceded that the bond given on obtaining the injunction was clearly insufficient, yet the Court should have given reasonable time to the appellant to make a new bond, and upon his failure to do so, within the time appointed, the injunction should be dissolved: Rev. Code, 548, art. 58. We think the Court erred in thus dissolving the injunction without giving time to make a new bond. The remaining question for our decision is, did the Court err in overruling the motion for the appointment of a receiver? "It must be admitted," said the master of the rolls, in Madgwith v. Winkle, 6 Beavan, 495, "that when an application is made for a receiver in partnership cases, the Court is always placed in a position of very great difficulty. On the one hand, if it grants the motion, the effect of it is to put an end to the partnership, which one of the parties claims a right to have continued; and on the other hand, if it refuses the motion, it leaves the defendant at liberty to go on with the partnership, at the risk and probably at the great loss and prejudice of the dissenting party. Between these difficulties, it is not very easy to select the course which is best to be taken, but the Court is under the necessity of adopting some mode of proceeding to protect, according to the best view it can take of the matter, the interests of both parties." In order to justify the dissolution of a partnership, on the ground of misconduct, abuse, or ill-faith of one of the parties, it is not sufficient to show that there is a temptation to such misconduct, abuse, or ill-faith, but there must be an unequivocal demonstration, by overt acts or gross departures from duty, that the danger is imminent, or the injury already accomplished: Story on Partnership, 464, par. 288. Where a concern of any character or kind, covering a partnership, is broken up by controversial suits, and it is apparent that there can be no agreement between the parties in interest for its continuance, a receiver will be appointed: Williams v. Wilson, 4 Sandf. Chan, 379; Edwards on Receivers, 330. And a dissolution of a partnership may be granted and a receiver appointed on account of the gross misconduct of one or more of the parties: 1 Story's Eq. 635, par. 672, a. To authorize the appointment of a receiver there must be some breach of the duty of a partner, or of the contract of partnership: Harding v. Glover, 18 Ves. 281. It was the duty of the appellee to take the timber used at the mill, from the tract of land on which it was erected, belonging to the appellant; and the getting timber elsewhere, as alleged in the bill of complaint, was a breach of that duty and of the contract of partnership. And if the mill sawed six thousand feet of lumber per day, and the running of the mill from the fall of 1865 to the commencement of this suit in the spring of 1869, brings the parties in debt seven thousand dollars, as stated by the appellee in his testimony, it would seem to be a business which neither party should desire to continue. Upon the whole, we are of opinion that the case made by the bill authorizes the appointment of a receiver, and that, therefore, the Court erred in overruling the application therefor. For the reasons herein stated, the decrees of the Court in dissolving the injunction and overruling the motion for the appointment of a receiver, will be reversed; and the cause remanded for further proceedings in accordance with this opinion, with leave to the appellee to answer the bill within sixty days from this date. INDORSEMENT BY PARTNERS ESTABROOK V. SMITH See under Bills and Notes, page 222 PRESENTMENT TO PARTNERS FOURTH NATIONAL BANK V. HEUSCHEN, ET AL. CORPORATIONS NATURE OF A CORPORATION BUTTON V. HOFFMAN 61 Wis. 20, 20 N. W. 67 (1884) ORTON, J. This is an action of replevin in which the title of the plaintiff to the property was put in issue by the answer. In his instructions to the jury the learned judge of the circuit court said: "I think the testimony is that the plaintiff had the title to the property." The evidence of the plaintiff's title was that the property belonged to a corporation known as "The Hayden & Smith Manufacturing Company," and that he purchased and became the sole owner of all of the capital stock of said corporation. As the plaintiff in his testimony expressed it, "I bought all the stock. I own all the stock now. I became the absolute owner of the mill. It belonged at that time to the company, and I am the company." There is no other evidence of the condition of the corporation at the time. Is this sufficient evidence of the plaintiff's title? We think not. The learned counsel of the respondent in his brief says: "The property had formerly belonged to the Hayden & Smith Manufacturing Company, but the respondent had purchased and became the owner of all the stock of the company, and thus became its sole owner." From the very nature of a private business corporation, or, indeed, of any corporation, the stockholders are not the private and joint owners of its property. The corporation is the real, though artificial, person substituted for the natural persons who procured its creation, and have pecuniary interests in it, in which all its property is vested, and by which it is controlled, managed and disposed of. It must purchase, hold, grant, sell, and convey the corporate property, and do business, sue and be sued, plead and be impleaded, for corporate purposes, by its corporate name. The corporation must do its business in a certain way, and by its regularly appointed officers and agents, whose acts are those of the corporation only as they are within the powers and purposes of the corporation. In an ordinary copartnership the members of it act as natural persons and as agents for each other, and with unlimited liability. But not so with a corporation; its members, as natural persons, are merged |