206 P. 276 | Utah | 1922
The appellant, plaintiff below, brings this action as the administrator with' the will annexed of the estate of George Y. Wallace, deceased. L. E. Riter, Jr., and two other defendants are the sole heirs of L. E. Riter, deceased. Defendant L. E. Riter, Jr., the administrator of' the estate of L. E. Riter, deceased, is also made a defendant. The action is for an accounting of the partnership of L. E. Riter & Co.
In 1881 L. E. Riter, George Y. Wallace and O. W. Lyman entered into a partnership under the firm name of L. E. Riter & Co. This partnership engaged in a general merchandise and forwarding business at Silver City, Utah. L. E. Riter was the managing partner. He exercised control over the receipts and disbursements of the firm, and had full direction and control of all its books of account. L. E. Riter died in July, 1903. George Y. Wallace died in 1916. After the death of L. E. Riter, and at the request of George Y. Wallace, the
Referring to tbe mine account, George Y. Wallace, Jr. (son of George Y. Wallace, deceased), testified that in 1913, when be, bis father, and L. E. Riter, Jr., were discussing certain affairs of tbe Riter corporation, George Y. Wallace, Sr., inquired of Mr. Riter about tbe item of $7,000 as shown on tbe statement above referred to and rendered in 1904. Tbe latter replied that some payments were coming in, but that they were slow, and that something might be gotten out of it at some time.
There was much evidence regarding tbe boobs, and especially what was termed tbe Iron Dragon Mine account. It is not necessary or advisable in this opinion to attempt to review this evidence.
At tbe close of appellant’s case tbe court granted a motion
Viewing the evidence in the light most favorable to the plaintiff it seems clear that the books and the testimony-offered by appellant indicate that, if the Bullion mine did not belong to the partnership, but was the property of L. E. Riter, deceased, personally,- then $4,500 of the firm’s funds should be accounted for. This state of affairs is of itself sufficient, in the light of the surrounding circumstances, to convince us that the court erred in granting the nonsuit. One of the grounds for objecting to the testimony on the part of the plaintiff, and also one ground for the -motion for nonsuit, was that all the necessary parties were not before the court. C. W. Lyman, one of the members of the firm of L. E. Riter & Co., resided at "Omaha, Neb., and had not resided in Utah since about the year 1893. Respondents contend that Lyman was a necessary party to this action for the reason that no decree can be effective, and which will finally settle the partnership affairs, without all interested parties being before the court.
“In a suit for an accounting, the general equity rule in regard to parties applies, namely, that all persons interested in the subject-matter, that is, in the accounting, should he before the court, to the end that complete, justice may be administered.” See 1 C. J. § 93, p. 631.
To that general rule there are certain exceptions, as when one or more of the parties reside out of the jurisdiction of the court. 1 C. J. § 93. If it were indispensably necessary to have all parties interested in the accounting before the court, it would necessarily follow that no accounting could be had at all if one of the several partners resided out of the state, and refused to voluntarily submit to the jurisdiction of the court. Under such state of facts courts would be powerless in a suit for an accounting to do justice between the litigants residing in its jurisdiction. Beck v. Thompson, 22 Nev. 109, 36 Pac. 562. However, in this case the question of proper parties not being before the court is a moot question. Before the final submission' of the ease for determination the defendant Lyman filed a.disclaimer of any
The most difficult question involved on this appeal, and the one upon which the district court seems to have based its decision, is whether George T. Wallace, deceased, and his representative, should be charged with laches in regard to the accounting. It is shown that L. E. Riter, Jr., after the death of his father in 1903, under the general direction of George Y. Wallace, the surviving partner, assumed and had charge of the partnership affairs and, for a time at least, conducted its business. It is evident that Wallace, Sr., had absolute confidence in L. E. Riter, Jr., and the relationship between them was friendly and confidential. This confidential relationship is an important circumstance in determining whether delay by Wallace, as surviving partner, constitutes such laches as to defeat any right to an accounting. 1 C. J. § 249, p. 250. The facts as to the payments made on the Bullion mine account do not appear to have been known to Mr. Wallace. Admittedly, whatever payments were made by the purchasers of that mine were made to L. E. Riter, Jr. Under such circumstances George Y. Wallace in his lifetime, and his representa-' tives after his death, cannot be charged with laches-, the delay not having resulted in prejudice to the respondents. 1 C. J. § 345, p. 249. Unless it is proved that the plaintiff’s right to recover is barred by the statute of limitations, delay • in instituting an action, unless such delay would necessarily result in an injustice or unfair advantage, is not sufficient in equity to constitute laches. The testimony of the appellant tended to prove that the issues in dispute between the parties had by process of elimination been very materially narrowed, and it would appear not to be difficult for a court to determine the rights of the parties without attempting to take an accounting of the entire transactions of the partnership. In any event, in our judgment, the showing on the part of the appellant was such that the court should have heard the testimony and made findings upon the issues presented by the pleadings, and upon which testimony was submitted. Jones Mining Co. v. Cardiff Mining Co., 56 Utah, 449, 191 Pac.
The judgment of the district court is therefore vacated and reversed, and the cause is remanded to the district court for further proceedings. Costs of this appeal to be taxed against respondents.