16 Colo. App. 190 | Colo. Ct. App. | 1901
The copartnership transactions between Lendholm and Bailey gave rise to this suit, and the circumstances attending the cessation of their business raises the only question which the record permits us to determine. There are other matters, but as we look at them, they are not of sufficient consequence to warrant us to disturb the judgment.
With reference to this one matter we think the court erred, providing it shall ultimately find the facts as they now appear. As we look at the record we in no manner interfere with the findings of the court. Those findings are very inaptly and inartificially drawn. They might have been so construed as to conclude us.
With reference to the pivotal question, to wit, the statute of limitations, all the court said was that the action was not barred by the statute. While this is stated as one of the findings of fact, it is not such at all, but is simply a conclusion of .law which the court drew from the proof. The findr ing is that the evidence preponderates to the point that the business did not terminate until the property was disposed of, and that the partnership transactions were not closed up until the last sale was made in 1891. Conceding all these matters there is no direct finding of fact to the point that there was no dissolution of the partnership at a date long antecedent to the time the last of the partnership property was sold or the last of the indebtedness of the concern paid off. We state these preliminary facts to show that we have no desire to interfere with the findings and recognize the force of the rule which we almost'universally follow, to treat 'them' as conclusive, and we now proceed to state what the record shows in respect of those matters which we regard as determinative. . .
Lendholm and. Bailey, without, written articles, entered
Under these authorities it is very clear there was an end put to the business, and that the partnership was dissolved. It is not true that the holding of the fifty-five head of cattle operated to continue the concern and prevent the dissolution. It has been well adjudged that the holding and sale of specific articles in no manner tends to revive a cause of action which has been barred because of a dissolution, neither does it tend to continue the concern. Currier v. Studley, 159 Mass. 17. Even if these principles were not true, and there are none to the contrary, it would still be certain that the statute would start to run from the time an account was stated between the parties. If the letter of January 10, 1888, is not a statement of an account as between the members of the firm, none was ever made out and sent. It is quite true the letter does not take the form of a merchandise account with debits on . one side and credits on the other in the regular
There is a wide difference between the rights and remedies which inure to copartners for the enforcement of their respective obligations, and those which belong to individuals or different firms which have dealt with each other. With respect to the latter there is usually little question as to the date at which the statute of limitation commences to run. A totally different question is presented where a bill for an account is filed. The difference does not spring from the circumstance that in one case it may be a suit in equity and in the other an action at law because the former jurisdiction, in analogy to the rule which prevails in actions at law, adopts the general statute and wherever the suit is at law the action would be barred and held unenforcible in a court at chancery. We are quite cognizant of the fact that there is apparently a wide difference in the cases with respect to one proposition which this case presents. Many of the states very broadly hold that the statute runs from the date of dissolution regardless of what may afterwards happen. Others hold that where anything is done about the firm business with reference to either the disposition of assets or the collection of debts, it will operate to prevent the bar and that the statute only starts to run from the date of the last transaction. We proceed to cite the authorities which hold that it starts from the dissolution. Quayle v. Guild, 91 Ill. 378; Bonney v. Stoughton, 122 Ill. 536; Richardson v. Gregory, 126 Ill. 166 ; Arnett v. Finney, 41 N. J. Eq. 147; Wells v. Brown, 83 Ala. 161; Brewer v. Browne, 68 Ala. 210; Gray v. Kerr, 46 Ohio State, 652; Montgomery v. Montgomery, Rich. Cas. (S. Car.) 64.
According to our notions this case expresses the true rule which ought to prevail when the question is whether the statute commences to run at the date of the dissolution or afterwards. We however conclude, as the record now stands, though we frankly confess it may be altered on the subsequent trial by further proof in the premises, the statute did commence to run at least as early as January, 1888, when a full account was stated between the partners, rendered by Bailey on one side and received by Lendholm on the other, without objection and without protest. Under the proof as it now is, the firm was dissolved in 1887. The firm had no assets. There were none to which it had even a semblance of claim save the little bunch of cattle then in the possession of Bailey, and to which he held a vested title, and it owed little unless it was obligated for the indebtedness represented by two notes which had apparently ceased to be co-partnership obligations because they had been taken up by Bailey with his own paper, and so far as the bank was concerned were discharged by the individual note of the one who might in a limited sense be called the liquidating partner. Bailey took up the firm notes and gave his own secured by Cochran. The bank accepted them in settlement. •Without determining whether the bank could ever have held the firm liable on the original indebtedness after this surrender, there were outstanding no notes of the firm save one small note held by Gebhart.. From this date, to wit, November or December, 1887, the firm practically owed nothing. Whatever may have been the state of accounts as between the copartners, the firm had no assets except fifty-five head of cattle, which as suggested, were held and owned
On the proof, we conclude the court erred in holding otherwise, and the judgment must consequently be reversed.
Reversed.