18 Fla. 670 | Fla. | 1882
delivered, the opinion of the court;.,
This is an-'action-of assumpsit brought ¡by ;Drew, against Price. The declaration contained several counts/ The; last four were for money payable by the defendant to the plaintiff, h»' money paid by the plaintiff for'the defendant at his request, for money paid by the plaintiff to the defendant, and for money found tobe due upon an account stated. To these counts' in' the declaration the1 plea’ of never was indebted was interposed, and there was issue’thereon, uThe defendant also plead the statute Of limitations of two years, and a special plea of set-off of. an amount' alleged’to be equal to the plaintiff’s claim and due him by plaintiff for the purchase-monejr of piles and timber furnished by him to plaintiff at his request. To this plea plaintiff replied that he never was indebted ; and to the plea of the statute of limitation he interposed a demurrer, which was sustained. .The first count in the declaration was as follows:
“ Eor that the plaintiff and defendant shipped a cargo of yellow pine piles to New York City on their joint account upon the agreement that they would bear equally the expenses thereof and share equally in the profits, proceeds of said shipment of piles.
“ That the plaintiff advanced to the defendant on account of such shipment the sum of two hundred and eighty-four dollars; that the expenses on said shipment of piles exceeded the amount of the sale thereof by the sum of one thousand two hundred and four dollars, for which amount a loss was sustained on said shipment of piles which the plaintiff paid, and the defendant thereupon became, and*679 was, and is, liable and indebted to the plaintiff for one-half of said-loss besides the. amount-advanced to him:as aforesaid, and no part of the same has been'paid.”
To this count the defendant filed the following plea :
“ That this court ought not; to have ór take fufthef‘cognizance of the action aforesaid, because he says that‘the said supposed,cause of action,: as:set forth in the first.count of plaintiff’s declaration* is out of the jurisdiction of -this oourt, and is only, .cognizable', if af ail,-,in a. court o.f; equity, which -has: exclusive .jurisdiction ,iñ a matter of partnership.”
'. In one branch of-the argument by the appellee .'and plaintiff it is insisted that the plea is to the whole action.,. The commencement-here is not applicable to a plea to a distinct count to the declaration, but the body of the plea* looking to the issues of law. and fact made upon the other counts of the declaration, shows that it is applicable to the first count alone. It is therefore to be considered in the light of a plea going to the first count only, and to no other. To this plea the plaintiff interposed a demurrer, the grounds of which were that it did not tender an issue of fact; that it did not set up facts which show that a partnership existed.
This demurrer was sustained. This action is one of the errors here assigned. The questions of law arising upon this demurrer are the most important, are really the controlling questions in this case, and - we therefore consider them first. This demurrer reaches the first count in the declaration, and if it be that it does not set up a" cause of action for which assumpsit. can be maintained, it is immaterial how defective the plea is. Before discussing the matter of the first count in the declaration we will say, however, that the usual and proper method of raising the question here raised is by demurrer. By way of plea to
But however this may be, if the first count is not good then the judgment upon this demurrer must have been against it. This count sets up, first, that the plaintiff and defendant shipped a cargo of yellow pine piles to New York City on their joint account upon the agreement that they would bear equally the expenses thereof and share equally in the, profits and proceeds. As to this shipment they were; therefore partners. The plaintiff then alleges that he advanced to thy, defendant on account of the shipment two-hundred and. eighty-four dollars ; that, the expenses , incurred. exceeded the-proceeds of .the sales one thousand two hundred and four dollars; that for that
Assumpsit is based upon a promise, express or implied. There is here no allegation of any settlement of the accounts connected with the shipment by the partners, no allegation of a final balance struck between them, and no allegation from which any promise, express or implied, by the defendant to pay the particular sums claimed as due arises. The claim is also for one-half of two sums due, one of two hundred and eighty-foUr dollars advanced to defendant on account of the shipment on partnership, and the other for a balance claimed to be due as a balance, ascertained by plaintiff to be one-half of the difference between the expenses and proceeds of sales. Can the plaintiff maintain an action at .law for these sums? We think not. This being a partnership, and there having been no settlement by the partners and no allegation of a balance struck, there is nothing to raise a promise,- express or implied, by one partner to pay to the other any particular sum. An adjustment of the accounts, either as to advances or profits and losses, by one partner cannot be held tó be an adjustment by the other in the absence of authority from the other, and this is true in the very nature of things, whether the partnership be for a single shipriient or “ transaction,” or a partnership of a general character; Again, under this count it cannot be said that either partner is the creditor of the other. The accounts of each are with the partnership, each of the partners compose it, and neither of them can at law sue, because such a suit'would be equivalent to suing himself. Until these accounts are adjusted-, what one partner may owe the firm is not a debt due to the copartner, nor is the indebtedness of- the firm to one of the: members a debt due from the other members to him; See the remarks of
What-say the books on' this-subject? • In 1 Chitty’s Pleading, (11th Ed.) 45, where,- with 2 Chitty, 213,-we find the most complete collection of. casés On the subject; it is said : In the case of a'partnership, .whether it be-a-general or a particular partnership,, one .partner -cannot .at . law recover his-share-of money received by: the-other: on account of the firm, tinless oh a final balance of -, all,accounts ^'particular-sum be found due- to one partner which the other expressly promises to pay, or unless, there be’an express covenant-to account.”, -The earlier-cases in' 2 T. R., 478; 2 Bing., 170; 3 Bing., 55; 6 B. & C., 149; Holt’s N. P. Cases, 368, are cited to .the. text, and upon examination some of them sustained the doctrine as announced, and others do not. The case in Holt holds that upon a settlement and balance found an implied promise arises.- - The case in 2 Bingham, however, repudiates this doctrine-, expressly referring to the case in Holt as a nisi prius case, and holds that an express promise is necessary. (P. A., 6 B. & C., 79.) The case in 2 Tenn. R. inclines to that view. In the case in 6 B. & C. there was no account settled. The later rule in England, and which is now treated as the settled doctrine in that country, and in many if not in most of the States of the Union, is that if partners finally balance all their accounts and a certain sum be found to be due to one of them thereon, the partner against whom the balance is struck may be sued at law to recover the amount, without there having been any express promise on his part to pay the same. (Wray vs. Milestone, 5 Ex., 21; 1 Bin., 191; 71 Penn. State, 180; 50 Mo., 121; 43 Conn., 66.) In New York and Illinois an express promise seems to”be required. (16 John., 322; 17 John., 84; 1 Wend., 534; 2 Scam., 498; 11 Ill., 154; 60 Ill., 561.) In Massachusetts, contrary
But it is said that the present case is-that of a particular1 adventure, and not of a general partnership for commercial purposes. This is true, but we do not think as applicable to this case the rule is varied.
•The case of Beville, et al., vs. Hammond, 6 Bar. & Cress., 79, was a case where two persons undertook to procure a cargo for a vessel for a certain commission, and the rule was applied to it, Abbott, C- J., remarking: “ It is a general rule that between partners, whether they are so in general or for a particular transaction only, no account can be taken at law. These parties have never settled any account between themselves, and the only ground on which this ease is distinguishable from former decisions is that all the moneys have beeu received and paid by one partner. That certainly makes an account between them less necessary, but if we therefore held this action to be maintainable, I think we should be breaking down a general rule and introducing nice distinctions which it- is much better to
But it is insisted that this is the case of a partnership in a “ single transaction,” and that one of the partners may, in an action of assumpsit for money paid to his use, enforce from the other contribution towards a debt which he may have discharged but to which they were jointly liable. This is the text of Glow on Partnership, §79. This writer, in support of this proposition, cites 8 T. R., 186, and 2 Bing., 132. The case in 8 T. R. was that of a judgment in tort against two defendants where there, was a levy of the whole damages on one. This one sued for a contribution from the other. Lord Kenyon said that he had never before heard of such an action where the judgment was for
The present ease, however, is not the one stated in the text where contribution is sought for a joint debt paid by one of two joint debtors who may be partners with reference to that debt alone.
In speaking of the cases cited by Gow in the second edition of his work to sustain his proposition, there somewhat modified, and of others of like character, Parsons, in his work on Partnership, says : “ These eases seem to be very far from establishing the proposition for which they are cited, which • is that. through an action of assumpsit for money paid to his use one partner may enforce, contribution from the other in a.ease where they were-partners in a single transaction. In some of them are to be found dicta' of
There is another class of cases which may be called the “single item” cases. (5 Wend., 274; 1 Stark., 78; 16 Wend., 603; 4 Burr., 283; 6 N. H., 551. See citations in Parsons on Part., 3d Ed., note, page 309.) These are principally cases where there has been some special transaction in reference to the partnership in which a balance has been admitted to be due by one partner to the other and a promise to pay, before any final winding up of the partnership. 16 Wend., 601; 4 Burr., 281; 6 N. H., 547.
The case of Robson vs. Curtis, which is usually cited in this connection, and upon1 which most of the American cases are founded, is rather in conflict with the cases just mentioned. In that case A., receiving a bill of exchange in payment for part of a lot of cattle jointly purchased by himself and B., endorsed the bill to B., B. endorses it over, and the bill being dishonored, B. promised to pay A. half of the amount if he would take it up. A. paid it, brought his action and was non-suited, because a part of the cattle jointly purchased remained over. But however this may
Our conclusion, upon an examination of the facts set up in this count, is that it fails toset up any legal cause of action in that no settlement by the parties is alleged. There is no promise, express or implied, to pay any sum. What is alleged shows that the plaintiff, certainly to the extent of the losses, is a creditor of the partnership and not of his partner.. The advances made being on account of the shipment would seem to be an advance by the partnership through him to his co-partner, and as to this, therefore, the defendant is the debtor of the partnership and not of the plaintiff. It is said that the partnership is dissolved. That may be true in a general sense, but the rights of the partners still exist for the purposes of adjusting their accounts, and they must seek the forum appropriate to such relief.
The demurrer to the plea to the first count in the declaration should have been overruled.
The next question here raised is that arising upon the demurrer to the plea of the statute of limitations of two years. We think this not a good plea to the indebitatus count in the declaration for money paid, &c., for, so far as it is concerned, the action is upon a contract, obligation or liability, not founded upon an instrument of writing, and the limitation in such case is three years. The demurrer to this plea should therefore have been sustained.
Without going into an elaborate statement of the facts appearing upon the testimony, we will simply state that after careful examination we find merit in the case, and
Judgment reversed, and case remanded with directions to set aside ■ the finding, and for further proceedings conformable to law and consistent with this opinion.
