2 Conn. 425 | Conn. | 1818
In this case, it appears, that the plaintiff, xhe defendants, Gad Peck and Goodrich ⅜ Deforest were the joint owners of certain property, which they delivered to the defendants, as their agents, to be shipped to the West-Indies, to sell the same, and pay over the nett proceeds to the respective owners. This was a limited copartnership ; and as there were more than two partners, the only remedy is a bill in equity, where the accounts of all can be properly adjusted : and no action at law will lie in favour of either of the partners, against the defendants, as their agents, to recover their pro
The parties to this action, with three other persons, were jointly interested in a voyage. In this transaction they were co-partners. The avails came into the hands of the defendants, who stated the account, ascertained the balances due to each person concerned, and actually paid one of them his share. The plaintiff has brought aft action of assumpsit to recover the sum due to him. This suit cannot be sustained. Between co-partners, the action must be account, unless there, has been a settlement between them, and a balance struck, or an express promise to pay. Wetmore v. Baker & al. 9 Johns. Rep. 307. Ozeas v. Johnson, 1 Binn. 191. S. C. 4 Dall. 434. Smith v. Barrow, 2 Term Rep. 478, by Buller, J. Moravia v. Levy, 2 Term Rep. 483. in nota. Hartup v. Wardlove, 2 Show. 308. Dewitt v. Staniford, 1 Root 270. Whitman v. Wadsworth, 2 Root 267. Casey & al. v. Brush & al. 2 Caines 293. Niven v. Spickerman & al. 12 Johns. Rep. 402. Murray v. Bogert & al. 14 Johns. Rep. 322. Collins v. Phelps, 3 Day 506. It cannot, with any propriety, be argued, that the balance, in this case, has been ascertained and struck between the parties. The payment to Peck of a sitare, supposed to belong to him, is no evidence of a promise, that the defendant would pay the sum he had considered as due to the plaintiff. The settlement, if there was one, must bave been obligatory on the plaintiff; but of this there is no pretence. No act has taken place, which precludes the defendant from insisting, that the statement made by him was founded in mistake; and that it is of no effect, because it cannot bind the plaintiff, and therefore, obliges neither party. I do not assert there is an absolute necessity, that the account should be signed, to vender it a stated account; but, at least, there must be something equivalent. Perhaps, if the defendant had made out copies of the account as stated by him, and having been delivered by the parties, they had long retained them, with-t cut manifesting any objection, this might have a.mounted to
Courts, by reason of a mode of practice, which rendered the action of account tedious and expensive, have greatly leaned against it. The difficulty, however, was not intrinsic, but adventitious. The evils predicated of this action, have been surmounted, by the simplicity of our practice; and it is neither more objectionable, on the ground of expense, or protracted litigation, than any other action. Between co-partners and tenants in common, it is, for the most part, the only suit in which justice can be administered. The parties are admitted to their oaths j and this is often indispensable to the fair adjustment of their accounts. For the examination of a long and intricate account, a jury is a tribunal very incompetent. For these reasons it is, that co-partners have right to the appointment of auditors, before whom they can produce their accounts and vouchers, be heard on oath, and be indulged with a minute and patient examination of their mutual claims. lie who would deprive his co-partner of this privihge, should be prepared, beyond all reasonable exception, to establish a definite demand, from which it is unquestionable, that entire justice will be administered. This the plaintiff has not done.
The question, in this case, lies within a narrow compass. For two reasons, either of which is, in my judgment, decisive, the action cannot be supported. The plaintiff’s demand arises out of a partnership concern between himself, the defendant, and two other parties. For as to the adventure, of the avails of which the plaintiff claims a recovery of his share, all the parties concerned were strictly j partners. But, in the first place, an action of assumpsit will j not lie, between partners, for a balance due upon their partnership-account, unless the account has been previously liqui ■; dated, and a balance struck. But between these parties, there has been no such liquidation. The settlement bet ween i lie defendant and another of the partners, is a fact, as foreign :o the merits of this ease, as any other supposabie transar
But there is another consideration, equally decisive, that no action at law — not even the action of account, could be maintained, upon the facts stated in the motion. There were four distinct parties, interested as partners, in this adventure. But an action of account will not lie, (and much less will any other action at law,) for the settlement of company-accounts, where the number of partners exceeds two. This point was determined, by the superior court, several years ago, in the case of Boardman v. Seymour ; in which one of three partners in trade brought an action of account, against one of the others : And that determination has been since followed, in one or two other cases. The principle of these decisions is a very obvious and satisfactory one, viz. that where there are more than two partners, it is impossible to liquidate their partnership-account, in an action at law. If, for example, the number is but three ; two of them cannot join, as plaintiffs, against the other : because two cannot have a joint right of recovery against the third. And one of them cannot recover against the «other two, as co-defendants ; because there is no joint liability. Neither can one of the three recover against either of the others, singly : since the mutual claims of any two of them cannot be completely adjusted, without deciding upon those of the third. But a decision between two, would not be everf evidence, for, or against, the other ; nor can his rights be tried, in a suit, to which he is not a party. And even if it were possible, to adjust a final balance, as between two of three partners, without adverting to the state of the account, between themselves and the third ; still the entire concern could not be settled, in this manner, by less than three suits. And in a case, in which the number of partners is large, it would require, in this mode of proceeding, no inconsiderable skill, in the science of numbers, to ascertain, how many suits would be necessary, to liquidate the whole partnership-account. It is certain, that action might succeed action, almost interminably, before that end could be attained. Indeed, it would be practically unattainable. The only mode, in which a partnership-concern can be settled by suit, is that, in which all the partners can be made parties. And ?liis can be done, where there are more than two partners.
New trial to be granted.
