234 Pa. 280 | Pa. | 1912
Opinion by
In 1873 the firm of Phillips, Nimick & Company was formed for the purpose of manufacturing iron and steel. Its members were William K. Nimick, Alexander Nimick, James M. Bailey, David Borland and Hugh McDonald. McDonald subsequently transferred his interest in the partnership to the other four members of the firm. William K. Nimick died in 1875, but, by special agreement, his estate continued his interest in the partnership, and in 1887 Charles E. Speer, trustee under his will, transferred that interest in pursuance of an order of the Orphans’ Court to Alexander Nimick and James M. Bailey. David Borland died intestate March 3, 1884, and his administrator wound up his estate by filing a final account. Alexander Nimick executed a deed of assignment for the benefit of creditors in 1891 and died in 1898. James M. Bailey died in 1903. In May, 1905, The Fidelity Title and Trust Company filed its account as administrator c. t. a. of Bailey, surviving partner of the firm of Phillips, Nimick & Company. This account was referred to an auditor for distribution of the assets in the hands of the administrator, amounting to $108,568.83, and these were distributed equally between the surviving trustee under Alexander Nimick’s deed of assignment and the trustees under the will of James M. Bailey, the auditor having found that, by various assignments, the other three original interests in the partnership had been transferred to and become vested in James M. Bailey and Alexander Nimick. The report of the auditor was confirmed absolutely on October 19, 1905, and distribution was thereupon made by the accountant. On July 27, 1910 — more than twenty-six years after the death of David Borland and four years and nine months after the absolute confirmation of the report of the auditor distributing the balance in the hands of the appellee as administrator c. t. a. of Bailey, surviving partner of the firm of Phillips, Nimick & Company—
If David Borland was a member of the firm of Phillips, Nimick & Company on March 3, 1884, it was dissolved that day by his death; but it is by no means certain that he was a partner at the time of his death. On the contrary, it appears that when he died he was indebted to the firm in the sum of $900, which was carried on the books for some time and finally charged to profit and loss. Notice in writing was given to his widow and to his administrator of this indebtedness, but there was no reply from either of them intimating that there was an unsettled partnership account. This is not to be overlooked when now, after a lapse of more than twenty-six years from Borland’s death, his widow and children for the first time insist that he was a member of the firm at the time of his death. If he had been, it was the right of his administrator to call upon the surviving members at any time within six years for an accounting; but the administrator did nothing at all indicating a belief, either by himself or by the widow and children of the deceased, that he had continued, up to the time of his death, to be a member of the firm. During all the more than twenty years following the six years after his death not a thing was done nor a word spoken by his administrator or his
The appellants may not have had actual notice of the filing of the appellee’s account, nor of the report of the auditor making distribution, but they had constructive notice of each, for such notice was given by due legal advertisement, and this was sufficient: App v. Dreisbach, 2 Rawle, 287; Priestley’s Appeal, 127 Pa. 420; Ferguson v. Yard, 164 Pa. 586.
The relief asked for by the appellants, after the unusually great lapse of time in presenting their petition for it, could not have been granted by the court below unless there was first clearly established the membership of the deceased in the firm at the time of his death. This fundamentally material fact was not so established, and the petition was properly dismissed for the reason stated in the above quoted extract from the opinion of the court.
An additional reason given by the court below for dismissing the petition is that the statute of limitations bars the relief sought. Under the facts as developed, this was not error. There was no proof that Bailey had ever held himself out to the appellants or to any one else as a liquidating partner, having partnership assets in his hands, to a portion of which Borland’s estate would be entitled on an accounting. • On the contrary, everything done by him and Alexander Nimick subsequently to Borland’s death was inconsistent with the admission of their partnership with him at the time of his death and was in hostility to the claim now made by his widow and children. The statute, therefore, ran from his death. “And in reason and justice, why should not the statute close upon partners, who, for six years after dissolution, take no steps to ascertain the balance between them? On what principle should such an account remain open for all time? As soon as dissolution takes place, they stand
Appeal dismissed at the costs of appellants,