Brinegar v. Griffin

| La. | Feb 15, 1847

The judgment of the court was pronounced by

Slidell, J.

This case comes before us on an appeal from a decree dissolving an attachment, and dismissing the suit. One of the grounds for dissolution is that, the suit is for the liquidation and settlement of a partnership, and that in such a case the plaintiff cannot have the auxiliary remedy of attachment, because the ■affidavit indispensable to the granting of this writ cannot pi'operly be made by a ■party, who, from the nature of the case, must be ignorant of the precise amount ■due to him.

For a proper consideration of this subject it is necessary to refer briefly to the affidavit and the petition, in connexion also with ithe evidence received on the trial of the rule. The affidavit, in stating the indebtedness, declares that, the defendant is really-and justly indebted to the plaintiff in the sum'of $2,900, as will be shown in the petition to be filed. The -petition states, that in the year 1845, and in Keutucky, where the parlies both reside, they entered into a partnership for the purchase of a gang of slaves, to be brought'to this State and here sold, for the common account; that they an-ived in Louisiana in the fall of that year, and closed the sale of the slaves in the following spring; that the defendant is chargeable with the proceeds of the property so held in common and sold for the common account, which proceeds said defendant received. A statement is then given, item by item, of the price and proceeds, and of the vendee of each slave. Most of the sales are stated to have been on credit, and that notes and drafts of the purchasers were received by the defendant. In one instance, a sale or barter is charged as having been made :by ¡defendant,” for sugar received and disposed of by him. In some cases, the notes,or drafts are only charged as having been received by the defendant; in others, as having been paid to him. The petitioner further declares that, he has himself received ¡the price and proceeds of divers slaves, and certain moveables belonging to the partnership, amounting to the sum of $14,499 53; and “that, after allowing and charging himself for everything -and all sums of money he is accountable for to the said special partnership or speculation, or to the said David Griffin, the said Griffin remains justly indebted to petitioner in a balance of $2,900; -that he has often demanded an amicable settlement and the payment of said balance from the defendant, who has always refused to do anything.”

The prayer of the petition is as follows: “ That the defendant be cited to appear, and to produce all the claims and demands he may have against the plaintiff, or against the said special partnership or speculation; and that a liquidation and settlement of said speculation may take place; and that, after due proceedings, the defendant be decreed to owe the plaintiff the said balance of $2,900, with interest from judicial demand, &e.” It closes with a prayer for general relief.

This then is a suit for the liquidation and settlement of a partnership, the ascertainment of a balance, and a decree therefor. It is true that the plaintiff professes to have calculated, and to his own satisfaction ascertained, the balance ; but it is quite obvious that the partnership affairs involve mutual items ■of debit and credit, numerous and diversified in their nature, suchas the original outlay of capital, the necessary disbursements for the transportation and care of the partnership property, the ascertainment of collections of the notes and drafts taken, and the enquiry into the faithful gestión of the partnership affairs by the partners respectively. It would seem impossible, under the showing of the petition itself, and especially as it does not allege that any accounts have been rendered, nor any balance of account actually struck by the partners, that the plaintiff should be able to declare with certainty, the amount which, on a final liquidation and settlement of these affairs, will be found due to him. This uncertainty, apparent on the lace of the petition, is, if possible, rendered more obvio&s by a letter of the plaintiff’s, which was offered in evidence by the defendant. In this letter, after suggesting the expediency of avoiding litigation by an amicable adjustment of their affairs, the plaintiff remarks: “It seems to me that in a business of the amount that we did last summer, either the one or the other must be indebted to the other. If I to you, I am ready at anytime to settle,” &c. We do not, however, regard this evidence as necessary to sustain a conclusion which has a sufficient basis in the plaintiff’s petition.

In applying the law to the state of facts thus disclosed, it is necessary to bear in mind that the remedy by attachment is one, which, according to the uniform tenor of decisions, has been strictly construed. To justify the remedy, the creditor must be able to state on oath, expressly and positively, the amount of the sum due to him. However conscientiously the plaintiff may have believed that the liquidation and settlement of their affairs would eventuate in a balance in his favor of twenty-nine hundred dollars, the nature of the case forbids us to consider his affidavit as meeting the rigorous intendment of law providing this onerous remedy. Such was the view taken by the court in the case of Levy v. Levy, 11 La. 581. It is true, as contended by the plaintiff’s counsel, that the circumstances in that ease were stronger in favor of the party moving to dissolve, than those now presented ; but the principle on which that case rests, appears to us fully applicable to the matter now before us. We refer to, and adopt what is there said, as a just exposition of the intent of the Code.

We do not, however, Wish tobe considered as laying down the rule that, in no case of joint adventure can a partner proceed by attachment. Suits may occur )n which the business of the adventure may be so limited and simple in its features, as to exhibit a case where the party might be considered as able to swear to a positive and precise balance. When such a case presents itself, we shall deem the point open to consideration. The mere bonding of the property did not debar the defendant from moving to dissolve the attachment. See the case of Myers v. Perry, 1 Ann. Rep. 372.

The motion to dissolve on certain enumerated grounds, was made at an early .day after the institution of the suit, and before issue joined. Two days after the first motion, and before it was adjudged, the defendant asked leave to amend, by adding the ground for dissolution which we have considered. The court permitted the amendment. We think this was a proper exercise of the discretion of the court. The ground was based upon matter apparent on the face of the petition; it was not calculated to delay the trial of the rule, and does not appear to have taken the plaintiff by surprise, as he did not move for a continuance of the hearing. Our Code has laid down rules on the subject of amendments of the pleadings, but we are not aware that there ar.e any express provisions of law, which, in matters of this nature, restrict the discretion of the judge, where, in his opinion, the amendment, without creating delay, will tend to the furtherance of justice, by restricting within its proper sphere a harsh remedy.

The defendant, who made a personal appearance, also contends that the suit itself should be dismissed. It is true that the parties both reside out of this State, that the contract in which the suit originates, was made in Kentucky, and that the suit involves the liquidation of a partnership. Residence is not indispensable to the jurisdiction of our courts over parties present, even temporarily, in our State. Upon the general question, whether we will take cognizance of all suits for the liquidation of partnerships brought by non-residents against their partners, also non-residents, we express no opinion. When a case is presented of the liquidation of a commercial, or other partnership, involving extended and complicated transactions, conducted abroad, and the partnership having a domicil out of our State, it will be time enough to consider that question. In the present case, the partnership business was to be consummated in Louisiana. According to the plaintiffs’ showing, it was so consummated. In the investigation of a very important portion of the partnership accounts, the proceeds of the property sold, the examination can be conducted with greater convenience and probably less expense, here than elsewhere; and we are not prepared to say that, as to other subjects of evidence and enquiry, the facilities of another forum would preponderate. The plaintiff is clearly, under our laws, entitled to the forum which he has chosen, and we are of opinion that the court below erred in dismissing the suit.

It is therefore decreed that, so much of the decree of the District Court as dissolves the attachment, be affirmed, and that so much of the said decree as dismisses the suit, be reversed; and that this cause be remanded for further proceedings according to law, the costs of this appeal to be paid by the defendant.