23 Cal. 427 | Cal. | 1863
Rehearing
delivered the opinion of the Court—Norton, J. concurring.
This is an action in the nature of a suit in equity, brought by the administrator of William T. Clark, deceased, who in his lifetime was in partnership with the defendants, in the purchase of cattle in the State of Missouri, and their sale in this State, for a settlement of the affairs of the partnership. The case was sent to a referee for trial, upon whose report a judgment was duly entered, from, which the defendants appeal.
It seems, that the amount of capital invested by each of the partners in the partnership business, was very unequal. The defendants claimed that each partner was entitled to an interest in the partnership property, and the profits of the business, in proportion to the amount of capital put in, and not in equal proportions ; and when called upon by the administrator before the commencement of the action to settle and account for the partnership property and profits, they expressed themselves willing to settle and account upon that basis; but not upon the basis of an equal division. The administrator, on the other hand, claimed that the division should be in equal proportions ; and as they refused to settle in that manner, he brought this action. The referee found, upon this point, in favor of the plaintiff; and this is sufficient to show that the defendants were in default, and that the plaintiff had a right to commence and maintain the action.
But the defendants contend that the referee erred in finding that the parties were to share the profits equally. In the absence of any special agreement between the partners upon the subject, the rule of law is, that the partners are to share equally of both profits and losses; and the mere fact that the partners have put an unequal amount of capital into the common stock, or that one has put in all the capital, and the others only their skill and industry, will make no difference in the rule. (Story on Part. Sec. 24; 3 Kent, 28.) The evidence as to whether there was any special agreement between the partners in this case, which would take the case out of this general rule, was conflicting; and under the circumstances, we are not disposed to disturb the finding of the referee upon this point.
The deceased partner resided in California, and a large portion of the partnership business, especially that relating to the keeping and sale of the stock in this State, was conducted by him during his lifetime, during which he received and expended more or less money in and about the partnership business. In making up the account, the referee seems to have omitted these transactions of the deceased partner, and this is also assigned for error. It is clear that these transactions formed a material part of the account to be taken. The referee had no right to confine his account to the transactions of two only of the three partners. The whole of the subject matter in controversy between the parties, which included all the partnership transactions of each and all the partners, is the subject of the adjudication, and the account and decree must include all these matters and leave nothing open for future litigar tion or controversy. Equity will not adjudicate causes by piecemeal.
The judgment is therefore reversed and the cause remanded.
Lead Opinion
delivered the opinion of the Court—Cope, J. concurring.
It seems to us that the report of the referee, and the consequent judgment of the Court, is erroneous in this: That it decrees that the defendants, as surviving partners, are liable for the full amount found to be due of assets collected, or in the hands of these survivors, without regard to the indebtedness of some* $7,500 found to be due in Missouri, on account of the firm operations. We understand that the partnership was formed in Missouri, and comprehended, as well transactions in that State, as in this; and a full settlement should involve and conclude as well transactions there as here. The administrator of the deceased partner, therefore, is not entitled to a decree, irrespective of the firm debts there ; and the survivors would seem to be entitled to retain in their own hands, money, or assets, sufficient to pay this indebtedness, whether due in Missouri, or on contracts made there or here. But if we are mistaken in this, it is obvious that the report of the referee, which seems to be the whole predicate of the decree of the District Court, does not furnish any ground for such decree; for the referee says that it is impossible for him to ascertain the true state of the accounts, or make a full settlement in this respect, in the absence of information as to the amount of the Missouri debts, or by whom they were paid.
Judgment reversed, and cause remanded.