37 Vt. 588 | Vt. | 1865
The first question to be considered is whether the co-partnership business of these parties, in the quarrying, manufacture and sale of marble, can legally be adjusted and settled in the action of book account.
By the act of 1852, § 18, p. 344, GL S., it was provided that “whenever on the trial of any action on book account, it shall appear to the court that any item or items of account, or deal, between the same parties, more properly belongs to the action of account, the same may be tried and adjusted in the action of book account.”
It is claimed by the plaintiff that this act is sufficient to authorize the court to adjust and settle the account in question in this action ; but we think it was not the intention of the legislature to give to courts the power to settle general and extensive partnership dealings in this way. This we think is clearly indicated by the language of the act itself. The terms, “any item or items of account or deal,” seem to indicate that the legislature had in mind those single and simple transactions that ordinarily occur between men, growing out of the joint ownership or occupation of property, or where they have such a joint interest] in the transactions, that the action of account would be the proper one in which to settle them by legal proceeding, but where from the nature and limited extent of the business, it could be as well settled in the action of book account, and thus save the expense of another suit. It is in the experience of every lawyer that in the adjustment of accounts in the action on book, before this statute, that items were encountered that had to be thrown out, because they could be adjusted only in the action of account, but which all could see might just as well be settled in the
The power of the courts in actions on book are wholly inadequate to the settlement of such extensive and complicated co-partnership matters, and in the action of account, it has always been held that such action would not lie to settle co-partnership accounts where there were more than two co-partners, and even in such cases the court of chancery was ordinarily resorted to in consequence of the limited power of the common law courts.
When the legislature hy a recent act provided that all co-partnership accounts, irrespective of the number of co-partners, might be settled and adjusted in the action of account, they found it necessary also to provide that in such action, when brought for such a purpose, the common law courts should have full chancery powers. But the legislature has not given such power to the court in actions of book account, although the act we are now considering was passed at the same session with the act last above referred to ; thus showing quite clearly that the legislature did not understand that by the act in question they were giving the courts power to settle general and extensive co-partnership dealings in the action of book account.
The plaintiffs further insist that the advances made by them according to the terms of the contract, constitute a private claim against the defendant, and should have been allowed and adjusted in this action. No question of this kind appears to have been made in the county court. The only exception filed to the auditors’ report was, that the “auditors excluded from their consideration the co-partnership accounts” ; but as the question has been raised and discussed here, and as we are entirely unanimous in our views as to it, perhaps it is not improper that we should express them.
We think it perfectly clear that it was not the understanding of the parties that the advances to be made by the plaintiffs were to constitute a private individual claim against the defendant, that could be sued for and collected of him, independent of the co-partnership
Judgment of the county court is affirmed.
