Buckley v. Kelly, 70 Conn. 411

Buckley v. Kelly

70 Conn. 411 | Conn. | 1898

Torrance, J.

Upon this appeal the defendant claims, in substance, that the court below erred: (1) in not considering the partnership matters between plaintiff and defendant prior to May 28th, 1880; and (2) in overruling the remonstrance and accepting the report.

We think there was no error in refusing to consider the facts found with reference to the affairs of the prior copartnership, because these facts were outside of the issues raised by the pleadings. From the pleadings it nowhere appears that any copartnership or other relation had ever existed between these parties, prior to May 28th, 1880. All the allegations, admissions and denials contained in them, relate entirely to the affairs of the copartnership after May 28th, 1880, and contain no allusion or hint of any prior relationship between the parties, or of any prior unsettled accounts *418between them, or of any claim for an accounting for anything prior to May 28th, 1880. AJ1 the relief and remedy which the parties, by the pleadings, sought in favor of or against each other, related solely and entirely to the unsettled business of the new firm. Under the circumstances, we think the court below was justified in refusing to consider that part of the report pertaining to the affairs of the old firm.

The principal question raised by the remonstrance, and substantially the only one orally argued before us, relates to the allowance of interest against the defendant. The defendant claims that upon the facts found by the committee he ought not be charged with interest. The committee finds that at the date of the dissolution of the firm in May, 1882, “ all the books, accounts, assets and property of the firm remained in the possession of the defendant, who assumed the settlement of the business of the firm.”

From the facts found it is clear that the defendant, since the first of January, 1883, has had the use of the cash on hand at the dissolution, amounting to $375.39, and of the balance of accounts collected after paying the debts, amounting to $149.32, and has used the same as his own in Ms business. It is also clear that he has used in his own business, stock of the copartnership, of the value of $749.66, and there is nothing to show that he had not used this amomit of stock prior to the first day of January, 1883. He thus appears to have had the use, and to have used in his business, since January, 1883, money or its equivalent belonging to the partnersMp, amounting in all to the sum of $1,274.37. He assumed the settlement of the copartnersMp affairs, and had and assumed substantially the sole and entire settlement of them, and there is nothing to show that they could not have been settled completely and finally prior to, and certainly by, the first of January, 1883. Under these circumstances it was clearly his duty to have settled them within that time, and to have accounted to Ms copartner for the share of the latter in the surplus. An accounting had been demanded of Mm M 1882, and in August of that year this suit was brought to enforce it; it was his duty to render it within a reasonable *419time after the dissolution, and the remainder of the year 1882, after the dissolution, might properly be regarded by the committee as a reasonable time for the performance of this duty. Upon the facts found it is difficult to see why the defendant, after January 1st, 1883, was not wrongfully withholding from his copartner money rightfully due to him from the defendant; or why, under such circumstances, the defendant should not be charged with interest. Ordinarily, interest on the balance found due to a partner at the dissolution of a partnership will be allowed from the date of the dissolution, or from such a date as would afford a reasonable opportunity to close up the partnership business. Allen v. Woonsocket Co., 13 R. I. 146, 147. A partner who, on the dissolution of the partnership, holds the assets and property of the firm, and is entrusted with the duty of winding up its affairs, is chargeable with interest, as between himself and copartner, if he mingles the money of the firm with his own or neglects unreasonably to settle his accounts. Dunlap v. Watson, 124 Mass. 305; Crabtree v. Randall, 133 id. 552; Robbins v. Laswell, 58 Ill. 203.

The principles laid down in the following cases in our own reports, clearly warrant the allowance of compensation in the nature of interest by way of damages, for the use and wrongful detention of money in a case like the one at bar. Woodruff v. Bacon, 35 Conn. 97-104; Regan v. New York & N. E. R. Co., 60 id. 124-142; Healy v. Fallon, 69 id. 228.

We are of opinion that interest was properly allowed in the case at bar.

There is no error.

In this opinion the other judges concurred.