45 Cal. 133 | Cal. | 1872
Upon looking into the record we are of opinion that the action cannot be maintained. The accounts of the copartnership in which the defendant and the plaintiffs had been concerned for some two years, do not appear to have been settled and a final balance ascertained—certainly not within the rule which permits a suit at law for the recovery of such balance. The complaint itself sets forth several matters which appear to be yet unsettled: the sale of the interest of the defendant in the sawed lumber, by the plaintiffs; the. expenses attending the sale of the same; the amount raised thereon; how it was applied; whether it was sufficient to pay off the outstanding indebtedness, etc. Besides, it is not easy to see upon what principle the plaintiffs are to maintain a joint action at law against the other member of the late firm. The dissolution of the copartnership necessarily severed the copartnership relations of each of its members.
It may not at this day be necessary, in order to maintain an action at law against a copartner, or one who had been such, to show an express promise to pay a sum of money already ascertained as the balance due, but it is necessary' that the balance itself must be one which has been ascertained by the act of both parties—in other words, agreed to as constituting a balance due.
Judgment reversed and cause remanded.