Lower v. Denton

9 Wis. 268 | Wis. | 1859

By the Court,

Cole, J.

We think the circuit court very properly granted the motion for a nonsuit in this case. An examination of the statements and allegations of the complaint satisfactorily shows that the appellant undertook in this action to recover on claims growing entirely out of a partnership transaction between him and the respondent, and this too before there had been any settlement of the partnership affairs; or before it could possibly be known what would be coming to him on such settlement. We suppose the law to be well settled, that when money is due from one partner to another, on partnership account, payment, except in a few special cases, can only be enforced in a court of equity, upon a bill filed for an account!, and a dissolution of the partnership. Courts of law would not entertain suits of this nature, for the reason that it would be idle for one partner to recover what, upon taking a general account amongst the partners, and making a final settlement of the partnership affairs, he might be liable to refund. It is believed that these propositions of law are too well settled to require the citation of authorities to sustain them.

It was insisted, however, by the counsel for the appellant, that since the code had abolished the distinction between actions at law and suits in equity, this action could be maintained. We are unable to concur in this view of the case. For how can it possibly be known, until the partnership affairs are settled whether there would be anything coming to the appellant or not ? Obviously the partnership property would have to be first applied to the discharge of the partnership liabilities. This might absorb the whole partnership assets, or at least it would be impossible to tell, until the outstanding debts against the firm were paid, what balance would be due the appellant. Hence the necessity for a dissolution of the partnership between these parties, and for a final settlement of the partnership affairs, before judgment for any amount could be given for the appellant. It was contended that the respondent, by. entering into a co-partnership with Nathan F. Heard, without the knowledge or consent of the appellant, thereby put an end to the partnership formerly existing between the parties to this action. Assuming that this was so, still it does not obviate the necessity for an adjustment of the partnership matters, in order to ascertain the balance, which may be due the appellant on such final settlement.

As it appears to us the complaint should have been framed with this aspect, asking for a settlement of the partnership concerns, and for judgment against the respondent, for whatever amount might equitably and justly be found due the appellant. The complaint is drawn with no such object; but demands judgment for money advanced and services rendered in and about the partnership matters, to the amount of fourteen hundred and forty-nine dollars, before any settlement has been had, or account stated between the parties.

It was also insisted that the circuit court erred in granting the nonsuit, because evidence was given on the trial of demands not pertaining to the partnership matters mentioned in the pleadings. But as we understand the complaint, the causes of action therein contained relate entirely and solely to and grow out of the partnership transactions between these partiesj and the proof offered could only support these allegations. Certainly the appellant ought not to be permitted to recover on a cause of action not set forth in his complaint.

The judgment of the circuit court granting a nonsuit is therefore affirmed.