206 Pa. 312 | Pa. | 1903
Opinion by
If this suit were for an accounting by Carlueci, the appellant, to the estate of Lord, his late partner, the judgment would have to be reversed. Partnership accounts must be adjusted and settled and the liability of one partner to another ascertained by an action of account render or by a bill in equity: Ferguson v. Wright, 61 Pa. 258; Leidy v. Messinger, 71 Pa. 177; Crow v. Green, 111 Pa. 637; Murray v. Herrick, 171 Pa. 21.
The cause of action, as set forth in plaintiff’s statement, is, that the appellant broke all of his covenants in the partnership agreement, and this suit is not for an accounting, but for damages resulting to Lord from the dissolution of the partnership, wrongfully brought about by the bad faith and broken promises of Carlueci. In other words, the claim of Lord’s estate is not for a share of the profits of the business which he and Carlueci, by their agreement of December 2, 1899, were to carry on, nor is it for an accounting from Carlueci as a partner. The contention of the plaintiff below was, that, as a result of the broken promises of Carlueci, the partnership was wiped out and profits that.might have come from the business were never realized. If Carlueci had kept faith with Lord and the partnership had continued, whether profitable or unprofitable, the accounts between the partners would have to be settled in the
The jury were instructed by the learned trial judge, first, that before Lord could recover, it was incumbent on him to show he had performed all of his covenants and had been willing to go on and work the quarry and pay one half of the debts and expenses; and, secondly, that the evidence w'ould have to satisfy them that Carlucci had wrongfully dissolved the partnership. Without referring to the testimony in detail, it is sufficient to say that a careful examination of it has persuaded us that the jury were justified in their finding that Lord had performed his covenants, and that Carlucci had not only not done so, but had wilfully and wrongfully dissolved the partnership. As evidence of his wilful purpose to wrongfully force the dissolution, the court, under Addams v. Tutton, supra, properly allowed the plaintiff: to show that the defendant had advised the men who had been employed by the firm to bring suits against it, obtain judgments and sell out the partnership property, which he himself purchased; that he said the partnership was at an end; that he obtained an assignment of the lease of the quarry to Lord as well as of the farm on which the quarry was located, and entered judgment against Lord for default in payment of rent and issued execution on it; that he purchased the farm, and, with a new partner, opened a quarry close to the Lord quarry and was operating it at the time of the trial; and that, when Lord sold stone to get money to pay the men, he notified the parties to whom stone had been sold not to pay him.
We have discovered no error in any of the rulings on offers of evidence, and the only other question is as to the correctness of the court’s instructions on the measure of damages, which were: “Now, as to the value of this contract, you cannot go to work and evolve prospective profits, and figure up what should be the speculative profits in the future, but the
The verdict was for $4,000. On a motion for a new trial, the careful judge, feeling that the damages were in excess of what was warranted by the evidence, and that the jury might have, to some extent,, misunderstood the instructions as to the measure of damages, reduced the verdict to $1,800. There was evidence that Lord had made about $2,000 above expenses in operating the quarry the year before he entered into the contract with Carlucci; and, in the exercise of its discretion in disposing of the rule for a new trial, the limit in reducing the verdict was reached by the court below. As the case was