Gillett v. Hall

| Conn. | Jun 15, 1840

Church, J.

The defendants claim, that there are only two parties to this bill; and therefore, as it is a bill for an account, the only remedy is at law.

It has long been holden, by this court, that no action at law will lie in this state, for the settlement of a co-partnership account, where the number of co-partners exceeds two. Beach v. Hotchkiss, 2 Conn. Rep. 425. 430. But we are not informed, nor persuaded, that it necessarily follows, or has ever been decided, either by our courts or elsewhere, that the only remedy in such cases, is at law, where there are no more than two partners. Nor is it necessary that we determine this point, in the present case.

Enough appears in this bill to give jurisdiction to a court of equity. To effect an entire adjustment of co-partnership affairs, the extraordinary powers of a court of chancery may become frequently necessary ; such as to decree a dissolution, to appoint a receiver, to order a sale, or decree an injunction, &c. It is alleged in the original bill, in this case, that some of the defendants, forcibly and by fraud, seized upon notes, accounts and other papers belonging to the co-partnership concerns, and took them from the plaintiff’s possession, and still withhold them. The exercise of some powers beyond those appertaining to a court of law, may be indispensable, under such circumstances. But more than this ; the supple-menta^ bill, which has been filed, calls for these papers in the of the defendants ; demands that they be lodged in the hands of the clerk of the court for inspection ; and prays for an injunction that the defendants proceed no farther in the collection and disposition of the co-partnership debts and effects.

We do not accede to the claim of the defendants, in this case, that if the original bill did not disclose sufficient facts to support the jurisdiction of a court of chancery, jurisdiction could not be given, by the supplemental bill. It does not appear, whether the supplemental bill was filed before any proceedings under the original bill were had ; or whether, by consent of parties, or leave of the court. But we must now consider the proceedings to have been regular. A supplemental bill, when properly allowed and filed, is an addition to the original bill, and becomes part of it. The whole is to be taken as one amended bill. Mitford’s Pl. 34. Cooper’s Eq. Pl. 73. Shepherd v. Merrill, 3 Johns. Ch. Rep. 423. Thom v. Germand, 4 Johns. Ch. Rep. 363. 3 Atk. 132. Goodwin v. Goodwin, 3 Atk. 370.

Seeing then, as we do, upon the whole bill, sufficient allegations to give jurisdiction to a court of equity, the objection taken by the defendants for want of jurisdiction, cannot prevail.

But the defendants interpose exceptions to the report of the committee, and object to its acceptance. First, because it appears from the report, that the co-partnership effects have never been sold and converted into cash ; but the committee have estimated them by valuation or appraisal, and have charged the defendants with the price thus ascertained. And the case of Sigourney v. Munn, 7 Conn. Rep. 11. 20. 324., is relied upon as sustaining this objection. Whatever might be our opinion of the leading doctrines advanced in that case, as furnishing an unyielding rule for the settlement of co-partnership affairs, and especially of country co-partnerships, if we were now called upon to review them, it is not necessary to anticipate ; for we are sure they are not at all applicable to this case. In that case, Sigourney, the plaintiff, had the whole of the effects in his own hands, and under his own controul; he intermingled them with others ; and he alone could have sold them, and ascertained their value, by public sale; and Munn objected, because he had not done this, in the present case, the situation of the parties is exactly reversed. The defendants, the party making the objection, were in possession of the effects; they only could have disposed of them, and determined their value, by public sale ; and they refuse to give any account of them. If there has been any neglect or omission ofi duty in regard to these effects, it is chargeable to the defendants alone ; and they cannot be received to object to the consequences of their own fault. The committee have taken the only course in their power, to determine the value of the goods ; and if the defendants suffer in consequence, they only bear the results of their own neglect.

Secondly, the defendants object to the report, because the committee have charged the notes at their nominal amount, without distinguishing the good or collectible, from the doubtful and desperate. In explanation and justification of this course, the committee say, that they gave reasonable notice to the defendants of the time and place of their meeting, who refused to appear before them, and neglected to make any disclosure, explanation or denial of the plaintiff’s charges. The committee thereupon proceeded, upon the only evidence they had, the evidence produced by the plaintiff. The defendants had these notes in their own possession; and they only knew their situation and value; which they could have shown to the committee. Under such circumstances, produced by the defendants themselves, the committee could have pursued no other course than the one adopted by them; unless it was to have abandoned the investigation as impracticable, and thus have permitted the defendants, by their own act, to defeat the course of justice. It was the duty of the committee, under such circumstances, to take the charges of the plaintiff against the defendants pro confesso, unless modified or explained, by the evidence before them.

But there is one charge in the account, as adjusted by the committee, which does not seem to us sufficiently justified, by their explanation. It is the charge of 4,600 dollars, for property in Alabama. It no where appears, that this property was ever in the possession, or under the controul, of the defendants ; it may have been in the plaintiff’s possession. We think this charge must be expunged from the account. And we shall advise the superior court, that the report of the committee be accepted, with this exception; and that the superior court make such further order in regard to the claim of 4,600 dollars, as equity shall require.

In this opinion the other Judges concurred, except StorRS, J„ who was not present.

Report partially accepted.