Camblat v. Tupery

| La. | Jan 15, 1847

Tho judgment of the court was protíotínced by

Kino, J.

Tho plaintiff alleges that he was for some timo the partner of Twpery, tho defondant, and claims a settlement of the partnership, and a judgment for a sum of money which ho avers to be duo for capital advanced, profits made, commissions, travelling expenses, &e. The defendant denied’the partJlox'ship, and claimed a large sum in reconventiou. Subsequently ho filed a peremptory exception to the form of the action, alleging that the plaintiff claimed a spocific sum, and not a settlement of tho'partnership. This exception was overruled. Tho matters in controversy between the parties wero submitted to arbitrators, who, after a laborious investigation, made a report which was not homologated, in consequence of having been filed after the expiration of tho deliiy prescribed for that purpose. Tho arbitrators, however, wero sworn as witnesses on the trial of the cause, and stated that their report, which was used by them while testifying as a memorandum, was tho result of their examination-of the books and vouchors, and of the admissions of the parties during the progress of their investigation. They determined a balance to be due to tho plaintiff, for which a judgment was rendorod in the court below, and the defendant has appealed-. He contends: 1st. that the court erred in overruling his exception- to the form of the action; and 2nd. that the judgment is based on tho opinion- of the arbitrators, and is unsupported by the evidence-.

I. We think that the judge did not err in overruling the plaintiff’s exception.Tho averments and prayer of the petition sufficiently indicate that, the' object of the suit was to enforce a settlement of the partnership concerns, and tho payment of such sum as might be found due upon a final adjustment.

II. The only evidence in tho cause which throws any light whatever on tho confused and unintelligible books and accounts of tho parties, is that of tho two accountants who acted as arbitrators, and this is unsatisfactory. These witnesses state that their report, which is tho foundation of the judgment of tho lower court, does not embrace a settlement and liquidation of tho affairs of tho partnership. They conceived that their authority did not extend to such an-examination. Tliey state tliat the profits and loss were not ascertained; >tliat, in the settlement of a partnership account, it is usual and necessary to establish the profits .and losses; that, in making up their .report, the whole amount of sales, paid .or unpaid, was taken into consideration; and that no allowance was made for bad debts. They cannot say what amount is due to the partnership.

It is well settled, that one partner has no remedy against .another for moneys paid, or advanced, or contributed on account of the partnership, or for profits made during its eontinuanco,' until a final settlement takes Nace, when he may recover the balance which may appear to bo due to him. 11 Mart. 435. 8 Mart. N. S. 280, Story on Partnership, ss. 221, 348, and notes.

No final settlement of tho partnership affairs has taken place in the present instance, and the evidence is not before us in a form that enables us to make the liquidation, and determine which is the debtor or creditor partner. Information indispensable to that end is wanting, which the -plaintiff should have furnished. It was his duty to make his demand-clear.

We think that the judgment of the lower court is erronoous; and for the reasons assigned it is ordered that it be voided and reversed. It is further ordered that the .plaintiff’s demand be dismissed, and that he pay -the costs of .both courts.