85 Ind. 410 | Ind. | 1882
It is settled that one partner can not maintain an action against his co-partner for a share of the profits, upon a claim growing out of the partnership business, until there has been a final accounting and settlement. Page v. Thompson, 33 Ind. 137; Skillen v. Jones, 44 Ind. 136.
One partner may, however, maintain an action to compel an accounting, and to recover such sum as may be found due him upon the final adjustment of the partnership affairs. Briggs v. Daugherty, 48 Ind. 247.
A partner may compel the performance of an agreement of dissolution, and may recover a balance due him under the provisions of such contract. Snyder v. Baber, 74 Ind. 47.
We do not agree with the appellee that the complaint is to be construed as simply seeking to recover abalancedue upon an unsettled partnership account, and is to be summarily disposed of under the first proposition stated. We regard it as proceeding upon the theory that there has been a settlement, and the question, therefore, is whether it states facts sufficient to entitle the appellant to maintain such a suit.
The complaint alleges that the terms of the partnership were expressed in a written contract, which is set out; that
We do not think that the appellant has any right to go behind the contract of dissolution, for there is no charge of fraud or mistake. Where partnership affairs áre adjusted and settled by mutual agreement, the settlement will stand unless fraud or mistake is alleged and proved. Lindley Partnership, *967, and auth. in n. The complaint can not, therefore, be sustained upon the ground that it makes a case for a final accounting. ' If there is any case made it must be upon the agreement of dissolution.
The agreement provides that the appellant shall assume and pay the liabilities of the partnership; that, in case they exceed the value of the property taken by him under the contract, then the appellee shall pay one-half of the excess; and it is claimed that this stipulation creates a cause of action in appellant’s favor without payment by him of the liabilities assumed. In our opinion this position can not be maintained. The appellant expressly agreed to pay all partnership liabilities, and, in consideration of this promise, succeeded to the business of the firm, and obtained his partner’s interest in the property. He is not in a situation to sue his partner, because he himself has not performed his contract. Having bound himself to pay all partnership debts, he must perform his agreement before he can maintain an action upon the contract against his former partner. The appellee is bound to the creditors of the partnership, and the appellant certainly can not claim that he is also his debtor; to permit this would be to hold that one and the same liability gave to different parties, claiming under distinct and different rights, a right of action against the same person. But it is needless to pursue the discussion; the language of the contract is plain. Meredith bound himself to pay all debts and to look to the appellee for reimbursement in case they exceeded the amount of the invoice, and, until he has done that which he agreed to do, he can not maintain an action.
No breach of the contract of dissolution is shown. The appellee did not bind himself to pay any partnership debts.
Judgment affirmed.