66 Pa. 483 | Pa. | 1870
The opinion of the court was delivered, January 3d 1871, by
— These are appeals by different parties from the same decree. It was a bill in equity for an account of the transactions of a partnership in which there were three members. The plaintiff alleged that each partner had an equal interest. The answer of one of the defendants denied this positively, and averred that the interest of the plaintiff was only two-ninths, the
We agree with the master in the opinion that the answer of Eaton is responsive. The question is one often very nicely balanced, and the decisions upon the subject are numerous and not harmonious. I will not undertake here an exhaustive examination of them all or even the greater number. But after considerable research and comparison, there are some principles and rules to be deduced from them sufficient to decide satisfactorily the matter now in dispute.
When the plaintiff calls upon the defendant to answer the allegations contained in the bill, he makes him his witness for that purpose only, but for no other. Whatever constitutes in truth a part of the facts stated in the bill, the defendant has a right, and indeed is bound to set out. But he cannot make himself a witness for himself generally, and introduce other facts either in avoidance or defence. It is considered indeed as a test whether, as a witness on examination, he could be cross-examined as to the matter which he states in anticipation of his defence on a trial at law: Dunham v. Gates, 1 Hoffman’s Ch. Rep. 185. Thus if a plaintiff state an act, transaction or contract as the foundation of his* equity, the defendant has a right to state the whole of such act, transaction or contract as in truth it was. Otherwise a plaintiff by giving only part of a contract, if the defendant must admit that part, and cannot go on to describe truly all the parts of it, the grossest injustice might be done. The defendant must answer every material allegation in the bill, whether specially interrogated thereto or not, and unless he states the act' or contract fully, as it truly was, how can he conscientiously swear that the facts in his answer are true ? Half a fact or half a contract is not the truth. Neither is it true if in truth the terms of a contract are different. But another subsequent, independent and distinct fact, not stated in the bill, is not responsive, and therefore not within the rule.'
A few of the many decisions may he referred to in support of these views. One of the earliest is Kirkpatrick v. Love, Ambler 589. There was a decree for a general account, both sides to be examined on interrogatories. Plaintiff admitted the receipt of a
Our own cases, as far as they have gone, conform to these principles. In Eberly v. Groff, 9 Harris 251, the bill charged that an assignment was without consideration. The answer denied that it was without consideration, and proceeded to set forth what the consideration was, and it was held to be responsive. There was indeed an interrogatory asking for the consideration, but that, as we have seen, did not make it responsive if in point of fact it was not so. So in Pusey v. Wright, 7 Casey 387, the present Chief Justice said : “ If a contract be set forth, and the defendant be called on to answer it, a denial that it exists, modo et forma, would not be good, according to chancery practice; for this is
These principles and authorities amply sustain the conclusion of the master. In stating the terms of the contract of partnership the defendants were called on not merely to admit or deny it modo et forma, but to set out what were the terms agreed upon. They could have been asked specially upon an interrogatory based upon the statement of the bill to answer what the terms were, and this shows that the answer, though there was no interrogatory, was strictly responsive.
We are of opinion that the master was also clearly right upon the facts as found and reported by him in charging the defendants with the profits of the leasehold possessed by the firm at the time of the dissolution. It was, undoubtedly a part of their assets. The defendants did not dispose of it for what could then have been obtained for it, as they might have done. They kept and used it, and like any other article of property — a bale of merchandise, for example, if it afterwards increased in value and productiveness, the plaintiff, as joint owner, was entitled to his fair share of all the income and advantage derived therefrom — and the defendants were chargeable with a fair rent for the part used and occupied by them in their business.
But the report of the master is defective, as indeed he in part admits, in not stating the account as between each of the members of the firm. The decree might perhaps be amended from his report in ascertaining the sum due to the plaintiff by each of the defendants. But then it would not be complete. There is no account reported as between the two defendants. Without that it is necessarily incomplete — leaving them to a subsequent suit or proceeding. Between them there may be no dispute or difficulty, and they may, to save further costs, agree upon the amount. The decree on a bill for the settlement of a partnership account ought to make an end of the whole matter. For this reason the decree below must be reversed, and the record remitted for a further reference to the master and other proceedings thereon.
Decree reversed and record remitted.