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Korziuk v. Korziuk

OPINION FILED MARCH 20, 1958.

ANTON KORZIUK ET AL., APPELLEES,

v.

VINCENT KORZIUK ET AL., APPELLANTS.



APPEAL from the Superior Court of Cook County; the Hon. JOHN J. LUPE, Judge, presiding.

MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:

Defendants Vincent and Joseph V. Korziuk appeal directly to this court from a decree of the superior court of Cook County dissolving an alleged partnership between them and plaintiff Anton Korziuk, decreeing partition of partnership real estate and directing an accounting. Anton Korziuk, herein referred to as plaintiff, cross-appeals from that portion of the decree denying plaintiff interest on the rents collected by the partnership. A freehold being involved, this court properly has jurisdiction on direct appeal.

The defendants contend that the evidence does not justify the finding of a partnership or that the real estate in question is a partnership asset, that the plaintiff is barred by laches and the Statute of Limitations, and also that plaintiff is not in equity with clean hands.

Two tracts of real estate are involved, one on Addison Street, and one on Karlov Avenue, in Chicago. The testimony and exhibits introduced in evidence provide ample basis for the master's and trial court's finding that an oral agreement of partnership was entered into by the defendants and plaintiff about May 20, 1941, pursuant to which each partner made his agreed capital contribution and the Addison Street property was deeded by the plaintiff and his wife to Joseph V. Korziuk as a partnership asset. On February 27, 1942, Joseph placed the legal title thereto in trust with Pioneer Trust & Savings Bank with himself as named beneficiary, but thereafter, on November 30, 1942, the trust agreement was amended so as to require the trustee to deal with the trust property on direction of the three parties. The Addison Street property has been actually operated jointly by the partners from acquisition until January, 1951, when the defendant partners paid a hospital bill on behalf of plaintiff, that being the last money received by plaintiff from partnership property.

On June 2, 1943, the Karlov Avenue property was acquired in the name of Joseph, and on December 6, 1950, it was transferred by him to Pioneer Trust & Savings Bank in trust under the same terms as the Addison Street property.

In February, 1943, a property on Henderson Street was acquired and placed in trust on July 28, 1949, in the same manner. On August 30, 1949, the attorney for the partnership prepared a memorandum of information given him by the partners setting forth the following information:

"Anton Korziuk 8000 Vincent Korziuk 1500 Jos. V. Korziuk 500 ________ $10,000

Above capital contributions in the following buildings.

$10,000 4100 W. Henderson — 4 flt. $25,500 3108 N. Karlov Ave. — 13 flat $23,000 4042 W. Addison — 13 flats

Capital contributions to be refunded and profits to be divided equally."

This memorandum was made in the presence of each of the alleged partners and signed by each of them.

Subsequently the Henderson Street property was sold, and the proceeds of sale were given to the partnership attorney to place in a special bank account. Thereafter, the proceeds of sale were distributed by the attorney's checks dated June 13, 1950, to each of the partners. Each partner received two checks, one bearing the notation "In full payment of capital contribution" and the other "In full payment of net profits." Vincent's capital contribution check was for $1500 and his profits check was for $753.59. Joseph instructed the attorney to repay Anton $200 loaned Joseph for his capital contribution out of his capital check and received a $300 capital contributions check and a $753.59 profits check. Anton received a capital contributions check totaling $3200, being $200 loaned to Joseph and $3000 of his own capital contribution, and a profits check for $753.59. In addition, Anton received a $5000 mortgage.

At about the same time, a formal "Memorandum of Agreement" dated the blank day of June, 1950, was executed by Anton, Vincent and Joseph which, after reciting in the preamble, among other things, that the parties had theretofore entered into a joint venture of buying, selling and operating real estate, stated that the parties agreed first, that their accounts had been fully settled among themselves and each had received full payment of his capital contribution and all other claims; second, each acknowledged to the other full settlement and payment of all such claims and contributions; third, that each of the parties have a one-third interest in and to the North Karlov Avenue and West Addison Street properties; and fourth, that all of the income, rents, issues, profits and proceeds of sale of said real estate are to be equally divided among the three.

From the foregoing evidence it is manifest that the master and trial court were justified in finding that a partnership (or joint venture) existed and that the real estate in question was partnership property. Where real estate is bought with partnership funds for partnership purposes, and is applied to partnership uses or entered or carried on the account of the firm as a partnership asset, it is deemed to be firm property and, in such cases, it makes no difference in a court of equity, whether the title is in all the partners, in one of them, or in a stranger. If the real estate is purchased with partnership funds, the party holding the legal title will be regarded as holding it ...


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