M'Micken v. Ficklen's Curator

11 La. 310 | La. | 1837

Bullard, J.,

delivered the opinion of the court.

The facts disclosed in this case appear to be, that the plaintii^ and Ficklin, the defendant’s intestate, were partners in trade; that the partnership was dissolved in September, 1817, by mutual agreement. By the same agreement M‘Micken was put in possession of all the books, notes and accounts, with full power to settle and collect all dues and demands owing to said firm, and, when in funds sufficient, to pay off all debts due by tbe firm. Ficklin took all the goods on hand, at an advance of five per cent., and paid to his partner one half the price in drafts, on a commercial house in New-Orleans, and for the other half gave his note, with J. Smith and A. Webb his sureties, in solido, payable to M‘Micken & Ficklin, on the 1st of March, 1819, amounting to four thousand eight hundred and sixty-six dollars and ninety-three and a half cents.

The object of the present suit is to recover of the estate of Ficklin, 1st, the amount of the promissory note, last mentioned on the allegation, that it was erroneously made payable to the firm, instead of the plaintiff; and 2d, such balance as may be found due to the plaintiff, on the final settlement of the partnership concern, which, he alleges, amounts to the further sum of five thousand dollars.

We shall consider the different branches of the case in the order in which they have been stated.

I. In regard to the promissory note of Ficklin, Smith & Webb, the allegation, that it was made payable in error to M'Micken & Ficklin, is negatived by all the evidence in the record. It was given for the price of the stock of goods which belonged to the firm, and of which, consequently, an undivided half belonged to Ficklin himself. The other half was paid t0 the plaintiff. According to the pretensions of the plaintiff, he would be entitled to the whole of the stock In tra<H with an advance of five per cent., and Ficklin to nothing. If the goods had been sold to a stranger, each. partner would have been entitled to one half the price, and we cannot conceive how the case is altered, when one of the partners becomes the purchaser. Undoubtedly, if the plaintiff, who remained as liquidator of the concern, could, show t^at he had paid debts of the firm beyond the amount of the notes and accounts, which were placed in his hands for that purpose, he would be authorized to recover such an amount as would equalize the profits or losses between the partners. In that event, Ficklin’s estate would be bound to refund or to pay, the whole or a part of the note in question. Nothing authorizes us to presume, that the partnership made n0 P1'0^8) andiriskin the power of the plaintiff alone, to show the aktóu ñt'offdebts' which he has paid. He became the mandatory of his paflnef on the dissolution of the firm ; an(^ does not 'á,ppém\< théft he has rendered any account of his gestión. The audi'fdl's say in their report, that the note in question, was-o'o ¿he day of its maturity, charged on their books in account to RUMicken, and thereby became his individual property.' This charge must have been made long , ,1 , . , ° , . after the dissolution of the partnership, while the books were under the exclusive control of M‘Micken, and consequently no^ ev'^ence against Ficklin. But according to the same report, the whole debit of M‘Micken, including interest, amounts only to six thousand four hundred and thirty-four dollars and nineteen cents ; whereas, if he had charged himself with the sum received from Flower & Finley, on account of the stock of goods sold t.0 Ficklin, and the note dispute, those two items alone would have amounted to upwards of nine thousand dollars. The auditors further say, that the'acceptances mentioned, were cashed and disposed of to the use of the firm; but it is not. shown in what manner they were dispose^ of, nor what debts were paid out of that fund. Auditors are appointed to state the respective accounts of parties, and they are bound to do so with sufficient precision and minuteness, to enable the court to judge whether they acted correctly, in rejecting or in allowing the articles in the accounts.—Code of Practice, 455.

ti'on”of6partner- & i?. !*tíie fomíer ■was ’ appointed ceTvemdpayaU aeeounts^of the Jinn; the latter goods at an ad-oent.° °andVpa?d t0 Ilis,rl,aitl\er price' in drafts, haíff01gave0Ühis promiaaoryTiote, payable to the Jíddf'üiat M. recover Soa the note, from the liis twn right, ail account Of his agency as liqui-andshowshehas heyond^th^as-sets or means placed in his .«amis. appointed8 ^o tiv^aceounts^f*s the parties liti-fre hound todo predsion^and minuteness, to to judge whether rejected5,°orCai-lowed the jari-the accounts. The partner, who, ou the dissolution of the partnership, is appointed liquidator of the firm, cannot recover any thing from his co-partner, without first rendering an account of his agency as liquidator. Entries made in the partnership hooks, by the liquidator of the firm, after its dissolution, are no evidence against the other partner.

Their opinion, therefore, as to the liability of Ficldin’s estate to pay the note in question, is not conclusive.

II, With respect to the unsettled accounts of the firm, we have already intimated an opinion, that the plaintiff cannot recover any thing, without rendering an account of his agency as liquidator. He is chargeable with the notes and accounts put into his hands, except so far as he can show his •inability to collect them. He is chargeable with the amount ■of Flower & Finley’s acceptances, representing half the stock of goods; and he is further chargeable with any amount he ■may have received, during the existence of the firm. He is to be credited with the amount of debts, which he may show he has paid out of any funds in bis [a^n^ao>a.nd with his advances, according to the partne^Si^^«f^ijeMlteFicklin’s estate is chargeable with ono^iwUt’tné stock' of feoods, as .shown by this.note, and with\ny amoníVVte may have withdrawn from the concejh gut s*existenIp, to be credited by any advances whichljhe may Jmgeg^adejf Neither the reports of the auditou^n£»ilne'eviclej^re in the record, enables us to decide f n al 1 \N^wt^J^feparti es, and to strike a balance without the hazard of injustice, to one or the other of them. The books alone, are not evidence against the defendant, of any transactions since the dissolution of the firm. Under these circumstances, as the case must be remanded, we think ourselves called on to express our opinion, on some incidental questions to which our attention has been called.

We concur with the court below, in the opinion, that it was not necessary to make the attorney of absent heirs, a party in the first instance, and consequently that the suit was correctly dismissed as relates to him.

The plea of prescription was properly overruled. . At a former term of the Supreme Court the case was remanded/ in order to enable the plaintiff, to show that prescription had been interrupted. This is now abundantly shown, in the record'.

It is therefore ordered, adjudged and decreed, that the judgment of the Court of Probates, be annulled, avoided and reversed, the report of the auditors set aside, and- that the case be remanded for further proceedings according to law ; the plaintiff paying the costs of this appeal.