18 A. 247 | R.I. | 1889
Lead Opinion
The defendant's motion to vacate the order is denied. The defendant, after having answered on oath whether he has the books and documents called for in his possession or control, and what he knows about their possession, will have the opportunity to contest the right of the complainant to their production. The statute does not require any notice to him before making the order. We are not able to see that the statute is in this respect unconstitutional, or that the necessity for notice is implied.
The respondent then filed an answer to the petition, admitting that he held the books, and setting forth his reasons for declining to produce them.
Addendum
This bill is brought by the complainant, individually and as administrator on the estate of Henry R. Congdon, deceased, for the settlement of the accounts of two copartnerships. The bill alleges a partnership, first, between said Henry R. and the defendant, dissolved February 8, A.D. 1875, but existing several years prior thereto; and, second, a partnership between said Henry R., the defendant, and the complainant, *284 formed February 8, A.D. 1875, and existing until February 8, A. D: 1878, when it was dissolved. It also alleges that the first partnership, though it ceased to do business as to third parties when the second was formed, was treated during the continuance of the second as subsisting, the two being designated on the books as "Congdon and Aylsworth No. 1" and "Congdon and Aylsworth No. 2," and charged and credited accordingly, the second borrowing from the first from time to time. The bill alleges that there are several parcels of real estate belonging to the first, which have been in the possession and care of the defendant; that the complainant does not know the terms of the first partnership; that the books and papers thereof are in the defendant's hands, and he refuses to allow the complainant to inspect them; that the defendant has, since the death of said Henry R. and since the appointment of the complainant as administrator, repeatedly acknowledged to the complainant that the accounts of the two firms had never been settled with said Henry R., and has repeatedly promised him to settle the same, and that on settlement thereof a considerable balance will appear in his favor as administrator and individually. Henry R. Congdon died March 3, A.D. 1883. The complainant was appointed and qualified as administrator soon after. The bill was filed April 12, A.D. 1886. The defendant demurred to it for multifariousness because of the joining of the two accounts. The court overruled the demurrer, being of the opinion that the transactions of the two firms were so connected that the two accounts could be conveniently taken together. Since then the defendant has answered, setting up a settlement of the affairs of the older firm, and other defences, and denying some of the allegations of the bill. The answer is not under oath, the oath having been waived in the bill.
At a former term the court made an order upon the defendant, on application of the complainant under Pub. Stat. R.I. cap. 214, § 45, to answer on oath as to what documents he has relating to the matters in suit, and, if he has any, whether he objects to their production, and, if he objects, as to the grounds of the objection, the complainant's purpose being to use the documents in preparing for trial. The case is before us on the defendant's answer admitting possession of partnership books of both firms, and alleging reasons why he should not produce them. *285
His first reason is that the bill is defective, the heirs of Henry R. Congdon being necessary parties. We think that the heirs are necessary parties if the real estate alleged to belong to the older partnership is to be brought into the accounting, since the answer to the bill does not admit that it is partnership effects. The complainant, however, professes to be willing to supply this defect by amendment, and therefore we pass to other objections, no order for production to be entered until the amendment is made.
The second objection is that the complainant, having waived the oath to the answer, is not entitled to discovery, and therefore, before proceeding further, he should be required to strike out of his bill the portions which relate to discovery. The defendant refers to Harrington v. Harrington,
The third objection is that the allegations of the bill, though sufficient to support a bill for discovery and relief, are not sufficient to support a bill for relief merely, the defendant in his answer having declined the discovery. The bill is a bill for an account between partners, a matter peculiarly of equity cognizance; 1 Story Eq. Juris. § 663; and the necessary allegations are simply allegations which show that the complainant is entitled to have the account settled in equity. 2 Bates on Partnership, § 936. *286 In Towle v. Pierce, 12 Metc. 329; 46 Amer. Decis. 679, it was held that where the bill alleges that the parties are copartners, and that the defendant has all the partnership books and refuses the complainant access to them, and prays for an account, the bill need not state the case with as much particularity as would be necessary if he had access to the books. We think the allegations here are sufficient.
The fourth objection is that the allegation of dealings between the two firms, on account of which we overruled the demurrer, is denied in the answer, and the objection of multifariousness is renewed therein by way of plea. The defendant claims the right to have the plea decided in limine, since a decision in his favor would result in a dismissal of the bill. But on this plea the books would be evidence for the complainant, if his bill states truly. The defendant's reply is that his affidavit denies that the books would afford any such evidence, and he claims that the affidavit must be taken as true, citing English cases. The cases cited do not relate to partnership books in cases between partners, but only to books and papers which, if not relevant, are privileged from inspection. The defendant has no privilege which entitles him to withhold the books from inspection by the complainant. The statute, Pub. Stat. R.I. cap. 134, § 9, provides that the administrator or executor of a deceased partner "may enter upon the premises and examine the books and affairs of said copartnership." We do not think the fourth objection can avail.
The fifth objection is that the complainant, having waived his right to discovery by way of answer to the bill, by waiving his oath, is not entitled to get the discovery indirectly by proceeding under the statute for the production of documents. We are inclined to think that, if the bill were simply a bill for discovery, this objection would be valid; but it is for relief as well, and, as we have seen, states a case for relief; and, this being so, it seems to us that the objection cannot prevail. The statute applies to actions at law as well as to suits in equity. The complainant might have proceeded at law by actions of account. If he had so proceeded, this objection would be, not only without force, but without meaning; and it does not seem to us that, under the statute, an objection should be good in equity which would amount to *287 nothing at law. Where a bill alleges a case for relief, a waiver of the oath to the answer does not preclude the complainant from calling the defendant to testify as a witness, and we do not see why it should preclude him from a resort to any other evidence in support of his bill, aside from the answer, which the law would entitle him to if there no waiver. It seems to us that the only effect which can be legitimately given to the waiver is the effect which follows from the provision of the statute declaring that, where the oath is waived, the answer shall have only the force of a plea at law; that is to say, the parties to a suit in equity are in this respect put on the footing of parties in an action at law. It was probably thought that, owing to changes in the law of evidence, the uses of the answer as evidence had been for most purposes superseded, while the privileges appertaining to it were no longer defensible. Moreover, as we have before remarked, this is virtually a case between partners, and the documents in question are partnership books, which the complainant is entitled to have access to under the statute, and for the production of such documents the courts grant orders with exceptional liberality. Kelly v. Eckford, 5 Paige, 548.
The final objection is that the complainant has lost his right to have the books produced by his own and his intestate'slaches. The bill, however, alleges a continuance of both copartnerships, as between the partners, down to A.D. 1878. The intestate died a little more than five years afterwards. The bill also alleges that, since his death and since the complainant's appointment as administrator, the defendant has repeatedly acknowledged that the accounts remain unsettled, and has repeatedly promised to settle them. On the face of the pleadings the question of laches is an open question, for the trial of which either party is, it seems to us, entitled to the production of the books. 2 Bates on Partnership, §§ 942-949; Shelmire'sAppeal, 70 Pa. St. 281.
Our decision is that the defendant be ordered to produce the books and papers for inspection.
