6 Colo. 543 | Colo. | 1883
This action was brought and determined in the court below prior to the adoption of our present system of civil procedure. Our consideration thereof must, therefore, be had under the rales of pleading and practice as they then existed.
There is no doubt but under that practice the general rule was that a defendant in equity could not obtain affirmative relief against the complainant except upon a cross-bill containing the necessary averments. There may be doubt as to whether a defendant might not have obtained such relief .against .a co-defendant without a cross-bill.
Under the ancient equity practice, where one sued for an accounting, it was necessary to offer in his bill to do equity by an averment of his willingness to pay any balance that might be found owing from him to the defendant. But such averment has for many years been presumed, and the bill is not defective if the same is omitted therefrom. Columbian Government v. Rothschild, 1 Sumn. 94.
Where an action is brought in equity for an accounting between partners, certainly the offer of complainant, as well as the willingness of the other partners, to do equity should be presumed in the absence of special averments to that effect in the pleadings. And the courts have recognized an exception to the general rule by giving judgment for a balance found due from complainant to defendant, even though no cross-bill were filed seeking the same; the decree for such balance is said to be granted “upon the plaintiff’s bill.” Raymond v. Came, 45 N. H. 201; Scott v. Pinkerton, 3 Edwards’ Ch. 74; Grove v. Fresh, 9 Gill & J. 280; Wells v. Strange, 5 Ga. 22.
And “where a proper case is made out by evidence arising from pleadings and proofs between plaintiffs and defendants, a court of equity is not only entitled to make a decree between the defendants, but is bound to do so.” Story’s Eq. PL § 392a.
Under the foregoing proposition the “ case made out ” is by “evidence arising from pleadings and proofs between plaintiffs and defendants;” a cross-bill between defendants is not included in the pleadings required.
The above rule stated in Story, whether correct as to other cases or not, ought in reason to govern in the accounting between partners; and it has been held so to do.
“In taking an account on á bill filed by one partner against his copartners, * * * the decree should settle
In this cas.e defendant in error, Julia P. Thayer, alleged in her answer that there was a balance due her from her co-defendant, Craig, and prayed a decree therefor. We think the relief was properly granted, though she filed no pleading entitled a cross-bill against Craig, demanding the same.
Error is assigned to the action of the court in allowing interest upon the amounts found due from Craig to the defendants in error. Sec. 2, ch. 11, Revised Statutes of Colorado, allowed the recovery of interest, when there was no agreement therefor, at the rate of ten per cent, per annum, “on money withheld by any unreasonable and vexatious delay. ” The court in the decree found that Craig had “unreasonably and vexatiously withheld” from defendants in error the sums of money therein declared to be due them. The statute authorized the allowance of interest under certain circumstances; the court found those circumstances to exist in this case; and we are not disposed to say that the evidence fails to sustain the finding.
The pleadings and evidence show that defendant in error, Julia P. Thayer, acquired her interest in the partnership property and business by purchase from H. L. Thayer, her husband. It is claimed that this purchase or attempted purchase was void, and passed to her no interest in the property. That under the law as it then existed in Colorado, the husband could not make a valid contract with his wife, and thus transfer to her the title or ownership of property.
Whether the position of counsel be correct, had the question arisen in an action at law, we need not deter
No fraud or want of consideration in connection with the sale to Julia 1?. Thayer is alleged or proven, and no creditors of her husband are complaining in this action.
We do not think the statutes of 1861, referred to, abrogate the foregoing doctrine prevailing in equity. The case of Holladay v. Daily, 1 Col. 460, is an action of ejectment, and would not, if it held for the purposes of that action, as counsel contend, in any way conclude us in deciding the question under consideration.
There were three different transfers of partnership interests at as many different times; but after each transfer the business continued precisely as before. No objection or protest was made by plaintiff in error, or by any other person; the mill was operated, lumber was sawed and marketed, and the business carried on with his knowledge and consent, as though no such transfers had been made; plaintiff in error received from the business, according to the decree, upwards of $5,500 more than his share of the proceeds belonging to the firm. This conduct implies consent on his part to the creation of a new .partnership or continuance of the old one under the old •name, after each transfer; it amounts to a ratification by him of all the acts done in the transaction of the business
He cannot be heard in a court of equity to deny his liability to defendants in error on the ground that no partnership existed between them and himself.
The judgment of the district court must be affirmed.
Affirmed.