| Vt. | Aug 15, 1864
It is objected that the action of account cannot be maintained by the representative of a deceased partner against a surviving member of the co-partnership. It is urged by the defendant’s counsel, that as the statute of 1852 on the subject of actions of account between partners does not mention executors and administrators, such legal representative cannot maintain such action. Our statutes on the subject of the action of account were not passed for the purpose of limiting the action to the cases enumerated, but to extend the action in certain cases where it did not lie at common law. The action of account between partners exists at common law. The object of the act of 1852 was to enable a partner to sustain this action where there were more than two partners, having separate and •distinct interests, which could not be done at common law by reason pf the inability of a court of law to render several ^nd distinct judg
The defendant claims that upon the facts reported the balance found due the intestate cannot be recovered; that it should be applied on the debt the intestate owed Humphrey & Smith, (of which firm the defendant was a member). The auditor finds an agreement for such application, and that that debt is still unpaid. It is insisted by the plaintiff’s counsel, that as that contract was executory, and no application had been made on the'Humphrey & Smith demand at tho intestate’s death, it cannot be set up to defeat the action brought by the administrator. But as the defendant has received the plaintiff’s share of the profits, the contract is so far executed that the administrator could not collect the fund from him in violation of that agreement, if nothing further appeared. But it is conceded by counsel and treated as a fact in the case, that Humphrey & Smith presented and had allowed the whole of their claim against the intestate before the commissioners on the intestate’s estate. It is true that the administrator did not present this claim in offset before the commissioners. It does not appear that he knew of any agreement to make such application. No plea in offset is necessary in such case. The debts are not mutual debts between the same parties. The right to make the application rests on the agreement; and if the defendant wished to avail himself of the agreement, he ought to have presented it and had the application made before the commissioners. The recovery of the whole claim of Humphrey & Smith before the commissioners, and the omission to give credit for the fund in the hands of Humphrey, is a waiver of the defendant’s right to insist on that agreement as a defence to this action. This view of the case renders it unnecessary to decide the question which has been discussed as to the competency of Humphrey & Smith
The remaining question is, which of the sums reported by the auditor is the plaintiff entitled to recover ? It appears that the intestate died September 20th, before the close of the business season during which the copartnership by its terms was to continue. The report shows that previous to the intestate’s death the partners had made purchases and deliveries, and had incurred expense and spent time in relation to incomplete purchases which they had in contemplation, and which were carried out by the defendant after the intestate’s death. The auditor finds that what was done after the intestate’s death, in delivering to Buggies, was the legitimate business of the season for which the enterprise of the parties was undertaken, and that in the purchases subsequently completed, negotiations had been made by the defendant or the intestate previous to the intestate’s death. The defendant claims that he should not be charged with any part of the commissions on deliveries under purchases that had not been completed by payment of money previous to the death of Newell. On this basis the auditor finds the balance due the plaintiff $75.28. On the basis of charging the defendant one-half the commissions he received on those incomplete transactions, and allowing him for his time and expenses in perfecting them, and in delivering to Buggies after the death of Newell, the auditor finds the balance due the plaintiff $102.97. The counsel of the defendant is right in claiming that the partnership was terminated by the death of Newell. His death however did not operate as a forfeiture cf his existing rights. The commissions on these purchases were partly earned before-Newell’s death, and his representative is therefore entitled to some portion of what the surviving partner ultimately received. The mode adopted by the auditor was to treat the commissions on these inchoate transactions as partnership assets, and allow the defendant for his time and expenses in completing them. This is equitable and just, and we see no reason why it is not legal.
The judgment of the county court for the larger sum is affirmed.