A. GLENDON JOHNSON v. WILLIAM W. JOHNSON, 262 N.C. 39

DeNNY, C.J. The appellant has excepted to findings of fact Nos. 3, 11, 13, 15 and 17 and brings forward assignments of error based on these exceptions. An examination of the record supports the view that each one of these findings of fact is supported by competent evidence; consequently, we are bound thereby. Goldsboro v. R. R., 246 N.C. 101, 97 S.E. 2d 486, and cited eases. Therefore, these assignments of error are overruled.

It clearly appears in the record on this appeal that the plaintiff in this action moved in the receivership proceeding for the appointment of a referee for the purpose of stating an account as between the parties to the action as partners in the partnership of Standard Homes Company.

The court below allowed this motion, appointed a referee with the instructions to examine the audit theretofore obtained by the receiver pursuant to the orders of the court, and to hear “such additional evidence as the parties may desire to offer concerning the status of the account between them, making such adjustments as may be necessary to bring the account into agreement with the respective partnership interests of the parties as shown in the complaint and admitted in the answer * * The report of the referee revealed that for the period over which withdrawals were to be adjusted as of 16 June 1961, the date the temporary receiver was appointed, that William W.

Johnson and Lois E. Johnson, owning 75 per cent of the partnership, had withdrawn $112,550.25, and A. Glendon Johnson, owning 25 per cent of said partnership, had withdrawn $34,080.23. The referee’s report further stated that in order to bring the withdrawals into the proper proportion the partnership should pay to A. Glendon Johnson the sum of $3,436.52. No objection or exception was entered to the report of the referee.

Moreover, it was found as a fact by the court below that after paying the costs of the receivership, the receiver distributed the balance of the proceeds of the sale of the partnership to the former partners as their interests then appeared and in accordance with the statement of account among the partners as determined by the referee. No exception was taken to this finding of fact. The appellant’s pleadings, motions, and exhibits have been vagus and contradictory in many respects from the very, outset of this litigation.

For example, in the appeal from the orders appointing a temporary and permanent receiver and dissolving the partnership, the record discloses that the plaintiff herein, the defendant therein, filed a motion in opposition to the appointment of a receiver and the dissolution of the partnership on the ground that he had already instituted an action “specifically predicated upon a mutually agreed, or completely understood and accepted, dissolution of the formerly existing partnership; that no decree of this court is required or necessary to establish that accomplished fact.” He further quoted verbatim, in his motion, the statement hereinabove set out with respect to the nature and purpose of this action filed with the Clerk of the Superior Court of Wake County on 31 March 1961, for the purpose of obtaining additional time in which to file his complaint.

He then placed his

interpretation upon the nature and purpose of this action in the following language: “That an accounting and distribution of the residual partnership assets were the approximate reasonably-to-be-assumed, and legally-to-be-inferred, end results suggested by the language used.” However, eight and one-half months after this action was instituted, the appellant changed his mind with respect to the nature and purpose for which his suit was instituted and filed an amended complaint for specific performance, alleging a verbal agreement with the defendant, William W.

Johnson, to buy his interest in the partnership on the terms set out in paragraph nine of said amended complaint, abandoning altogether the nature and purpose he had theretofore stated to be the nature and purpose of the action.

In our opinion, the question which is determinative of this appeal is whether or not the participation without objection by the plaintiff herein in the sale of the assets of the partnership, and his acceptance without objection of the accounting rendered by the referee, who was appointed on his motion, and by the acceptance of his share of the proceeds received from the sale of the partnership, as a going concern, constituted a waiver of any rights which the plaintiff had with respect to his action for specific performance. In 31 C.J.S., Estoppel,

section 109 (a), page 559, it is said: “Where one having the right to accept or reject a transaction takes and retains benefits thereunder, he ratifies the transaction, is bound by it, and cannot avoid its obligation or effect by taking a position inconsistent with it. A party cannot claim benefits under a transaction or instrument and at the same time repudiate its obligations.

Courts of equity proceed on the theory that there is an implied condition that he who accepts a benefit under an instrument shall adopt the whole, conforming to all its provisions and renouncing every right inconsistent with it.” In the case of Dawkins v. Dawkins, 104 N.C. 301, 10 S.E. 307, it appears that certain lands were sold pursuant to an irregular order and the heirs of the decedent received their share of the purchase money. In a later action attacking the former proceeding, the lower court dismissed the action.

Upon appeal, this Court said: “What is thus said rests upon the grounds that, if the heirs of George Dawkins, who, in his lifetime, purchased the land in question, each received his share of the purchase money therefor, he must, on that account, be deemed and held to have impliedly assented to, and acquiesced in, the irregular order complained of, directing the title to the land to be made to Randolph McDonald, who paid the purchase money as surety for George Dawkins, the purchaser; * * In Stansbury v.

Guilford County, 226 N.C. 41, 36 S.E. 2d 719, Guil-ford County had theretofore accepted the benefits of a judgment entered in a suit by taxpayers against the plaintiff to recover excess compensation paid to him. It was held that acceptance of the benefits of the judgment in the taxpayers’ action estopped the county from asserting a counterclaim based on matters litigated in the former action. In the case of Corbett v.

Corbett, 249 N.C. 585, 107 S.E. 2d 165, it was held that the grantee of a mortgagor, who acquiesced in a foreclosure and the execution of a deed of trust by the purchaser by accepting the major portion of the proceeds of the loan secured by the purchaser’s deed of trust, was estopped from attacking the title of the purchaser at the foreclosure sale. McDaniel v. Leggett, 224 N.C. 806, 32 S.E. 2d 602; Clark v. Homes, 189 N.C. 703, 128 S.E. 20.

Furthermore, in our opinion, the amended complaint, the amendment to the amended complaint, and the various and sundry exhibits attached thereto, are so vague and contradictory with respect to the terms of the alleged oral agreement on the part of the defendant, William W. Johnson, to sell and the agreement of the plaintiff to buy the interest of defendant in the partnership, that no valid cause of action for specific performance is alleged. In fairness to plaintiff’s counsel, they did not draft the pleadings herein.

In fact, they moved in the Superior Court in April 1963 to file a substitute complaint in lieu of all the plaintiff’s present pleadings. However, the motion was denied. The judgment of the court below is Affirmed.