2 Edw. Ch. 330 | New York Court of Chancery | 1834
The bill in this cause alleges a partnership to have existed during a period of about eight years prior to the decease of the intestate, Isaac Varían,
A question of partnership arose on the trial of a suit at law between the same parties, before referees, and wherein the present defendant was plaintiff. The latter there produced and offered to prove, as a part of his demand in the suit at law, an account for goods sold and delivered, which he called his store account, against the intestate. The present complainants objected to the introduction of the account upon the ground of a partnership in the business of the store where the account accrued; and because, whether any thing was due upon it or not, depended upon the settlement of the partnership accounts and which could not be gone into in the suit at law.
The referees heard evidence upon the point as to whether there bad been such a partnership. It was a matter contested before them ; and they came to the conclusion that a partnership had existed at the time the accounts accrued and they accordingly rejected the store account. In this decision the plaintiff Peaks acquiesced ; laid aside the store account; and went on and recovered other legal demands which he had against the intestate.
The present complainants now insist that Peaks (the defendant here) is precluded from contesting any further the fact of a partnership, and contend that the question is put at rest by the decision of the referees. The effect of that decision, as it stands, undoubtedly is to preclude Peaks from suing again at law upon the account: for, as the demand has been once submitted to the referees and passed upon by them, their finding would be a bar to another action for the same cause. Such is the effect of a verdict and judgment—the claim has been submitted and passed upon and no inquiry is necessary as to the grounds or reasons of the finding. Still, if a party wishes to avail himself
Then—as to the evidence in this cause. There are three witnesses on the part of the complainants who testify to declarations or admissions made many years ago by the defendant Feaks of the intestate’s having an interest with him in the store as a partner; while there are the same number, although not entitled to the same credit, who swear to declarations of the intestate himself that he had no concern or interest in the store. But the point does not end here: a variety of other facts and circumstances are testified to by other witnesses and all tending to show .the nonexistence of a partnership or, at least, the improbability of one éver having existed. The complainants are bound to make it out with reasonable certainty. It is not enough for
There is not enough to justify me in decreeing a partnership account to be taken ; and even if there were, it appears to me very doubtful whether any benefit would result to the complainants.
The statute of limitations is set up and insisted upon in the answer as a bar to an account, even if a partnership had been shown to have formerly existed. This statute may sometimes be a bar to a suit in equity by one partner against another for an account: Atwater v. Fowler, 1. vol. 422 ; and 1 am inclined to think there is sufficient room for its application here. But upon the first ground, I am of opinion the bill must be dismissed. As the complainants have, however, filed it in autre droit and under circumstances which may have induced them to believe a partnership could be proved, the dismissal must be without costs.