60 Miss. 615 | Miss. | 1882
delivered the opinion of the court.
The bill avers that complainant and defendant were partners in the business of farming under the firm name of H. L. Davis & Co., and desiring, after continuing the business for several years, to enlarge their operations, bought for this purpose a tract of land known as the Duncan Homochitto place, the negotiation for the purchase having been inaugurated by complainant and consummated by the defendant. The land was paid for out of the assets of the firm by a draft in the firm name, on their factors in New Orleans. But the deed was by the defendant taken in his individual name. • This was done without the consent or knowledge of complainant, who only discovered it a short time before the filing of this bill. The object and prayer of the bill is to compel defendant to make to complainant a deed of a one-half interest in the land, and to procure an account of the profits of the farming operations conducted on the place, the allegation being that said operations have been profitable and have resulted in repaying to the firm all the money expended in its acquisition. No dissolution of the partnership is sought either as to the business of this particular plantation, nor as to the general business of the firm. A demurrer ivas interposed on several grounds, all of which, save the fourth, were manifestly unsound.
The fourth ground presents the valid objection that it is not competent for complainant to compel an account of the operations of the firm on this place alone, excluding all else, inas
Though the assumption is questioned by counsel for appel-lee, we think that the bill indicates that there was “ no separate dealing by the firm with this plantation,” but that having been bought with and paid for out of the general assets of the firm, it was in the conduct of its operations blended with and made part of the general business without airy separately kept account of its profits and losses. It was formerly held that no bill for an account would lie between partners unless there had already been a dissolution of the partnership or a dissolution was asked by the bill; but this doctrine has been greatly modified by the later cases, both in England and America, and such accounting is now frequently decreed without any dissolution whatever. 2 Lindl. on Part. 947, et seq. ; Pars. on Part. 512.
But there are no authorities which will justify a prayer for an accounting as to an isolated portion of a general business, excluding all else, where the course of business has been to deal with the particular transactions as to which the account is sought as a part of a general whole. It is no more competent for a partner to do this, ignoring the state of accounts as to the general business, than it would be to seek an account and a decree for the profits of one year, disregarding the losses of preceding and succeeding ones.
This bill, in so far as it seeks an account, cannot be maintained under its present averments, and with its present prayer on that subject.
This, however, will not affect its maintenance in so far as it seeks a proper transfer of the legal title. That title, however, should be made to the firm of H. L. Davis & Co., since the allegations of the bill show not a purchase by co-tenants, but by partners for firm purposes. In resistance of this relief it will be admissible for defendant to show that complainant has no real or beneficial interest in the land, and for this pur
The demurrer being to the whole bill, and being good only as to a portion of it, the demurrer was properly overruled.
Decree affirmed and sixty days given defendant to answer.