delivered the opinion of the court.
The complainant, George G. Lobdell, and Charles Bush of the state of Delaware, and J. P. Pinker, Samuel M. Lantz and Jospeh Marston, of Virginia were, in 1854, the owners of Caroline furnace in the county of Shenandoah, Virginia, and of Union forge, and of the lands and personal property belonging to them respectively, which they were operating in partnership, under the name and style of Marston, Bush & Co.—the two former owning two-fifths in the furnace and one-third in the forge, and the latter owning one-fifth each in the furnace and one-fifth of two-thirds each in the forge property. Lobdell and Bush afterwards purchased Pinker’s one-fifth interest in the furnace property and partnership, which gave to them each three-tenths in the same.
The said Lobdell & Bush were also partners in carrying on a large foundry and machine shops in Wilmington, Delaware, under the name and style of Bush & Lobdell. And their establishment there seems to have afforded a market for most of the pig iron made at the Caroline furnace, though it supplied them with a very inconsiderable portion of the pig iron they consumed.
Charles Bush, one of the partners, died on the 5th of October, 1855, leaving a widow, and four children, one of whom was the wife of Henry S. McComb, the appellant,
After the death of Charles Bush, the furnace was con-tinned in operation. The bill in this ease alleges, that the terms of said partnership, and its operations, are more fully described in an original bill filed in this court, and still pending, in which McComb and wife are plaintiffs, and complainant and wife and ais. are defendants; which he makes an exhibit with his bill. He further avers, that “ the question of the continuance of said partnership after the death of Charles Bush, was submitted for the consideration and determination of this court by said bill, and it was determined in the negative, by a decree rendered in said cause, on the 28th of March, 1872.” And yet he “represents that said H. S. McComb, professing to act for himself, and on behalf of the estate and widow and heirs at law .of Charles Bush, deceased, of whom his wife was one, and with the concurrence of Joseph Maratón, the other surviving partner, entered into a verbal agreement, to operate said Caroline furnace and carry on the business appertaining to the same, in the name of the old firm of Marston, Bush & Co., the said McComb, representing and controlling the interest previously owned by Charles Bush, deceased.
The contract as alleged, is a contract of the widow and heirs of Charles Bush, deceased. The bill avers that it was entered into on their behalf by McComb, and for himself. How for himself? It could only be in the interest of his wife, who was one of the heirs. He had no • authority as administrator. The partnership effects did not come into his hands in the capacity of administrator; but were held by the surviving partners. It was their business to retain the partnership property, pay the debts,
Now this bill affirms, as we have seen, that the question whether there was a continuance of said partnership, after the death of Charles Bush, was submitted for the consideration and determination of this court in that other suit, and that it was determined in the negative by the decree of the court rendered in that cause. It would seem then to appear on the face of the bill, that the question as to the continuance of the partnership by the widow and heirs had been adjudicated and determined in another suit between the same parties. And if so, the bill was demurrable on that ground.
And when we turn to the bill itself, which the complainant has brought into this record, and made an exhibit with his bill, it would seem that the same matter was substantially put in issue in that suit. It alleges that “the business was still carried on by the survivors, without any new contract of partnership.” Again it avers, that “the business has been carried on since by said Marston & Lob-dell, but without any new contract with the heirs of said Charles Bush, deceased, or his administrator, and your
The defendant McComb in this suit filed a demurrer to the plaintiff’s bill, which was overruled by the court, and the defendant then filed his answer. Whether the demurrer ought to have been sustained on the ground already stated depends upon the fact whether the matter admitted by the bill to have been decided in the former suit, was an adjudication of the question arising upon the contract alleged in this case. Whether it be so or not, the matters alleged in the former bill were sufficient to put in issue the fact of such a contract as is alleged in this ease, and it is not perceived why the whole matter in controversy in this suit might not have been decided in that.
But the bill afterwards admits, that the contract alleged to have been made was not valid or binding on those on whose behalf it was made, for want of authority by McComb, who professed to act on their behalf. It consequently appears upon the face of the bill that the only contract upon which it seeks to establish the existence of a partnership was no contract at all. And it is sought to hold McComb himself bound by a contract, which he did not make on behalf of himself, because he was mistaken as to his authority, or made a misrepresentation as to his authority to enter into the contract on behalf of those on behalf of whom he made it. We do not think this position can be maintained on reason or authority, and consequently are of opinion, that upon this ground the demurrer ought to have been sustained. But upon the merits.
. The defendant McComb emphatically and unqualifiedly, denies the allegation of the bill, that he had ever made
This answer, so far as it negatives the contract alleged in the bill, is fully sustained by the deposition of the complainant himself, given in the other suit, and which the defendant, McComb, exhibited in this suit, upon the issue made by the bill and answer, to contradict the allegation of the bill. So that, upon the merits, the contract alleged in the bill was disproved by the plaintiff’s own deposition, which had been given in the other suit.
But the plaintiff, being advised of this, sought to sustain his cause by shifting his ground, and making a new case. He had to make a new case, for he never could succeed in the case made by his bill. It had nothing to stand on. Its very foundation—the contract which it alleged was proven by himself never to have had any existence. He thereupon, more than three years after the institution of the suit, and after the cause had been before a master, depositions taken, and report made upon the issues made upon the original bill and answer, and exceptions taken
The defendant, McComb, objected to the filing of this bill as a supplemental bill in this cause, upon the ground
The defendant then demurred to the supplemental bill, an(j set out the grounds upon which it was insufficient in law, as follows:
((2Tjrst_ Because it contradicts the statements of the original bill, and introduces a completely new case.
“ Second. Because it alleges that the contract of partnership was on behalf of D. P. Bush, the said McComb representing the said D. P. Bush, and that said McComb was not the authorized agent of D. P. Bush. This then being the contract set up in the bill, complainant is not entitled to enforce his remedy thereupon in a court of chancery.
“ Third. Because it alleges an agreement on behalf of H. S. McComb to form a partnership: which agreement the said H. S. McComb did not carry out. Upon such a breach of contract, complainant had his remedy at law, and is not entitled to sue thereon in chancery.
“Fourth. Because said D. P. Bush was not made a party to the suit.”
Without entering upon a discussion of these several grounds of demurrer, we are of opinion that they present substantially good grounds for sustaining it, and that the court erred in overruling the demurrer.
But waiving that, we will consider the case as it now stands, on the supplemental bill, upon its merits. The answer of McComb denies in the whole, and in every part, comprehensively and specially, positively and unequivocally, the allegations of the bill touching the contract. Let us first briefly consider the contract itself, as alleged. The statement is that it was a verbal contract made between H. S. McComb, for himself and David P. Bush, and George G. Lobdell and Joseph Marston (who were survivors of the old firm of Marston, Bush & Co.), on the 19th of May, 1856, in the state of Virginia, to form and enter into a
But with whom was the contract made? Lobdell was not present. He was absent in a distant state. Nor does it appear that Marston participated in making such a contract. Nor is there a particle of testimony to show that any one was present and witnessed the making of the alleged contract. Nor is there any evidence in fact of the making of such a contract. We have seen that it could not have been made with Lobdell on the 19th of May, 1856, as the bill alleges, because Lobdell was in Wilmington, Delaware, and McComb was at that time in Shenandoah county, Virginia, which is clearly inferrible from the testimony of Lobdell. John J. Stoneburner testifies, for the complainant, that McComb was at Caroline furnace in May, 1856, and directed Marston and himself to take an inventory of the property on hand, real and personal, to take a list of balances from the .books, and to transfer
There is no proof that MeComb made the contract of partnership alleged by the bill, or indeed any other contract of partnership, in May, 1856, whilst he was on a visit to Caroline furnace in Shenandoah, Va.; nor is there any evidence tending to prove it. Prior to his visit to Caroline . furnace, the interest of Charles Bush’s widow and heirs in the firm was only three-tenths. It was during that visit that he purchased for them and Lobdell the one-fifth interest of Lantz, which he afterwards conveyed by deed to George G. Lobdell: one-half in his own right, the other • half in trust for the widow and heirs of Charles Bush. It seems that this deed was not made until the 28th of Oct., 1856. If MeComb and David Bush, or MeComb alone, had entered into the alleged contract of partnership 19th May, 1856, and had agreed that they would take two-fifths interest in the new concern (though the old firm at that time, by executed contract, had only a three-tenths interest in the concern), why did he not have the moiety of the Lantz interest conveyed to himself, or to David Bush and himself, instead of to Lobdell, in trust for the widow and heirs of Charles Bush, if it were not that the Said Lobdell, as surviving partner, still retained for the heirs the entire interest which their ancestor, Charles Bush, had in the co-partnership ?
To proceed with his testimony : He says, at the same time (when he was in Virginia) H. S. McComb made arrangements for the future prosecution of the business at Caroline furnace, ordered an inventory made of the personal property, and a list of debts due to and by the firm of Marston, Bush <& Co. This, as we have before remarked, was not at all incompatible with the relation which he sustained to the company, though having no interest as a partner. But the witness says further, agreeing for himself and David Bush to take the interest which had formerly belonged to Charles Bush, and to continue the business under the firm name of Marston, Bush & 'Co., as had been done heretofore. He does not assert that he agreed for himself and David Bush to take such interest. He could not swear to that, because he did not know it of his own knowledge; for he was not present. So he mentioned it merely by way of recital; and it is all evidently founded upon information, which he received from Stoneburner, and relates to the time and place and remark made to him by McComb, which we have already
How, how was this large debt contracted by Lobdell, against the firm of Marston, Bush & Co. ? Bush & Lob-dell, both the old firm and the new, purchased the iron made at Caroline furnace, and both the old and new made advances to Marston, Bush & Co., in excess of the
And it is equally irreconcilable with that pretension, that he would have secured to McComb in July, 1861, by mortgage on his estate, the payment of the sum before mentioned, and a like sum to David P. Bush, if they were as members of the firm of Marston, Bush & Co. bound to him for their proportions—two-fifths—of the large debt of $32,999.93, which he held against that firm, without even a suggestion that what he was owing them
Verily the conduct of the complainant Lobdell has been utterly irreconcilable with his present pretensions and the claims he sets up in this suit.
He goes on further in his deposition to say, that on McComb’s return from Caroline furnace to Wilmington he stated what had been done, which met with the approbation of himself and David Bush. If he meant to include in what he says McComb communicated had been done, that he had agreed for himself and David Bush to take the interest he before mentioned in the firm of Marston & Bush, then he proves that Bush had sanctioned and confirmed the agreement, and was equally liable with McComb. But that would be inconsistent with the case made by his bill, and would prove him out of court. And if it does not prove that, it proves nothing against McComb touching the alleged contract. His testimony on that subject is all hearsay, and is most probably a mere repetition, with some amplification, of what he had heard from Stoneburner; for it goes beyond what was testified by Stoneburner, who never testified to any sort of agreement.
It is useless to pursue this investigation further. The conduct of complainant is entirely incompatible with
Against this overwhelming weight of evidence and circumstances, and the positive denial of the answer, we have the testimony of William Bush, that he “ understood from Henry S. McComb, that he was interested in the firm of Marston, Bush & Co., as it was reorganized after the death of Charles Bush.” Upon re-examination his recollection seems to have brightened and his testimony strengthened, and he says, “ I have a distinct recollection that Mr. McComb told me that he and David P. Bush had taken the interest that formerly belonged to Charles Bush in the firm of Marston, Bush & Co.” He does not give the time or place, further than to say, that he thinks it was-within a year of the formation of the new firm of Bush & Lobdell; he does not say whether before or after. But he stands alone; and his testimony cannot prevail over the sworn answer of the defendant. It is unsupported by the circumstances which support the answer, but is in
The defendant moved to withdraw the deposition of George G. Lobell from the cause after the filing of the supplemental bill. His deposition was given in another cause, and was filed in this case by the defendant to be read upon the issues made by the original bill. But his motion was overruled by the court. Waiving the decision of that question, which we have not deemed necessary in this case, we have considered the deposition of George G. Lobdell aforesaid.
The deposition of Henry S. McComb was excepted to by the plaintiff, which exception was sustained by the court, and the deposition was excluded, which ruling of the court is one of the errors assigned. We have not deemed it necessary to decide that question either, and have not considered said deposition in our decision. Upon the whole, the court is of opinion, to reverse the decrees of the circuit court, and to dismiss both bills, original and supplemental, as to the appellant, Henry S. McComb, with costs.
The decree was as follows:
This day came again the parties, by their counsel, and the court having maturely considered the transcript of the record of the decrees aforesaid and the arguments of counsel, is of opinion, for reasons stated in writing and filed with the record, that the said decrees are erroneous. Therefore, it is decreed and ordered that the appellee, George G. Lobdell, pay to the appellant his costs by him about his appeal and supersedeas aforesaid here expended. And this court proceeding to pronouce such decree as the said circuit court ought to have pronounced, it, is decreed and ordered that this cause be dismissed, and that the ap
Which is ordered to be certified to the said circuit court of Augusta county.
The appellee, George G. Lobdell, having submitted a . motion on the 27th ultimo, to set aside the decree pronounced on the 25th ultimo, and grant a rehearing thereof, and the court having maturely considered the said motion and the arguments of counsel thereon, it is ordered that the same be overruled.
But for reasons appearing to the court, it is decreed and ordered that the said decree of the 25th day of September last be and hereby is modified, so as to dismiss the plaintiff’s original and supplemental bills only as to the defendant Henry S. McComb; and the cause is remanded to the said circuit court of Augusta county for such proceedings therein between the plaintiff and the administrator of Joseph Marston, deceased, as may be deemed necessary and proper to a settlement of the partnership accounts between them as the surviving partners of the old firm of Marston, Bush & Co.
Which is ordered to be certified to the circuit court of Augusta county.
Decree reversed.