69 Conn. 392 | Conn. | 1897
In this case the plaintiffs, claiming to be the surviving members of a copartnership called The New London Lumber Company, alleged to have consisted of themselves and one Andrew J. Bentley now deceased, seek by way of equitable relief against the administratrix of Bentley, an adjustment of the copartnership accounts, and an accounting by the defendant for the property and effects of said copartnership received and possessed, as it is alleged, by Bentley, during his lifetime. Upon the pleadings and the finding of facts made by the trial court the case was reserved for the advice of this court.
The complaint is as follows : “1. That on the 2d day of November, A. D. 1885, they, the plaintiffs and the said Andrew J. Bentley of said town of New London, then in full life, entered into a copartnership at said town of New London, under the name and style of The New London Lumber Company, for the purpose of carrying on in said town of New London a lumber business; and that said copartnership so formed entered into the lumber business at said town of New London on said day, and that said copartnership was continued and carried on at said town of New London until the 1st day of January, A. D. 1893, when the same was dissolved by mutual consent. 2. By the terms of said copartnership agreement the said company was to and did receive from the said Andrew J. Bentley a large amount of property at an inventory price, which inventory and the said price affixed is now in the possession of the defendant and withheld by her from the plaintiffs. The said Andrew J. Bentley was to receive payment for said stock so delivered to said company at said inventory price, a reasonable sum as rental for the premises occupied by the said company, and repayment for and interest on all his contributions of capital to said company, in money or other property, at the rate of six per cent, per annum with annual rests, and the net profits of the business were to belong to the plaintiffs. 3. From the said 2d day of November, A. D. 1885, to the said 1st day of January, A. D. 1893, and during all the time and when said company was transacting its business as aforesaid, the said
“ The plaintiffs claim, by way of equitable relief, an adjustment between the parties to this suit of the copartnership accounts of the said late copartnership, The Hew London Lumber Company. An accounting by the defendant for the property and effects of said copartnership, received and possessed by the said Andrew J. Bentley, deceased. $38,000, damages.”
The answer filed reads as follows: “1. Paragraphs 2 and 8 of the plaintiffs’ complaint are denied. 2. Paragraphs 6 and 9 are admitted. 3. As to paragraphs 1,3, 4, 5 and 7, the defendant has not sufficient knowledge to form a belief.”
Upon the trial of the cause upon these pleadings, the court found the following facts: —
“ 1. Andrew J. Bentley, against whose estate this action is brought, died on the 18th day of March, 1895. 2. The defendant, on the day of March, 1895, was duly appointed and qualified as administratrix of his estate. 3. On the last day of October, 1885, said Bentley, who for a long time prior thereto had been, under the name of The Columbia Steam Saw & Planing Mills, engaged at Hew London in the wholesale lumber business, and, to a limited extent, in the retail lumber business, entered into an agreement with the plaintiffs, who for several years had been his employees in said business,—Moran from September, 1879, and Peck from Hovember, 1881. 4. Mr. Bentley’s purpose in entering into
The general question arising upon this record is as to what judgment shall be rendered thereon; and the answer to this depends upon two other questions, namely: (1) Does the finding support the complaint. (2) If not, are the plaintiffs entitled to an accounting upon the facts as found.
The complaint alleges that Bentley was a partner in The New London Lumber Company; that he sold and delivered the merchandise mentioned in the complaint, to that firm; that during all the time the copai’tnership existed he had in his possession goods, choses in action and moneys, of said firm, to the value of $600,000, and had the care and management of the same for himself and as bailiff of the plaintiffs; and that when the firm dissolved he took possession of all its effects, amounting to $20,000, to dispose of the same for the mutual benefit of himself and the plaintiffs, and to render an account thereof when requested, which he never rendered though often requested to do so.
The finding is that Bentley was not a partner, unless upon the facts found, as matter of law, he was one; and we are of opinion that as matter of law he was not a partner. The clear import of the finding is that the plaintiffs and Bentley agreed that as between themselves Bentley should not be a partner. All that he did and said, as found upon the record, was done at the request of the plaintiffs, “ to assist the plain- ' tiffs in a business start,” and “ to enable them to carry on a retail lumber business at New London under the name of The New London Lumber Co.” It was distinctly understood and agreed between Bentley and the plaintiffs, from beginning to end, that the plaintiffs were the partners; that Bentley was not a partner, notwithstanding the fact that he was to be held out, and was to hold himself out at all times to the world as a partner; and that Bentley’s sole relation to
Here, then, was an express agreement on the part of the plaintiffs that if Bentley, for their benefit, would assume, as to outsiders, all the liability of a partner, he should still remain as to them, what he in fact was, not a partner, but a creditor. The law did not forbid the making of such an agreement, and we see no reason why the plaintiffs should not be bound by it.
It being thus found that Bentley was not a partner, one of material allegations of the complaint is negatived; and this being so, it follows by way of inference, and it is also in effect found, that the other material allegations in the second, third and fourth paragraphs of the complaint, dependent upon the alleged copartnership, are also negatived. It thus appears that the plaintiffs’ case as alleged in the complaint, and the plaintiffs’ case as found by the court, differ from each other very materially. The case as alleged is based on the existence of a copartnership between Bentley and the plaintiffs for seven or eight years; while the case as found is that no such copartnership ever existed.
The relief prayed for is based entirely upon the case as alleged in the complaint: it is, specifically, for an adjustment of the copartnership accounts, and, in effect, for an accounting by Bentley as a copartner, through his representative. A judgment in favor of the plaintiffs upon this record would be one based upon a cause of action not alleged, and would be erroneous if properly objected to. Greenthal v. Lincoln, Seyms & Co., 67 Conn. 372; Pitkin v. N. Y. & N. E. R. R. Co., 64 id. 482.
This is not a ease of mere variance, or mere defect of proof, but a case of failure to prove the cause of action alleged, in its entire scope. As is well said in Southwick v. First Nat. Bank of Memphis, 84 N. Y. 420-428, pleadings are essential in every system of jurisprudence and there can be no orderly administration of justice without them; but if a party can allege one cause of action and then recover upon
Nor is this a case where the complaint can, after trial, be amended so as to conform to the proof, without entitling the defendant to a trial of the facts alleged in the amended complaint; for such an amendment would of necessity change substantially the cause of action now stated, and this would entitle the defendant to file new pleadings and to a trial of the new case thus presented. Bennett v. Collins, 52 Conn. 1, 3; Pitkin v. N. Y. & N. E. R. R. Co, 64 id. 482. Under these circumstances we do not feel called upon to express any opinion upon the question whether, if the cause of action found had been the cause of action alleged, the plaintiffs, upon the facts found, would or would not be entitled to an accounting.
As we understand the record, the only question presented by it is whether, upon the pleadings as they stand, the plaintiffs upon the facts found are entitled to a judgment for an accounting, and we are of opinion that they are not, and the Superior Court is so advised.
In this opinion the other judges concurred.