22 Ill. App. 87 | Ill. App. Ct. | 1886
The objections made by the appellants to the decree are that “when one person is a member of two different firms which have dealings with each other, a suit will not lie by one firm against the other either at law or equity Ofor an indebtedness of one firm to the other.” We do not regard this objection as sound. This is true as regards suits at law but not in equity.
If a suit in equity could not be brought by one firm against another under such circumstances, the creditor firm would be without remedy. Haven v. Wakefield, 39 Ill. 509, and Hall v. Kimball, 77 Ill. 161.
It is also insisted that members of each firm must look to their co-partner for an adjustment of the matters of accounting between the two firms, at least until their remedy against such co-partner is exhausted; in other words, applying the supposed rule to the facts of tins case, it was the duty of the appellee to compel a final winding up and adjustment of the affairs of the firm of It. A. Culter & Company and if in such settlement, in which Robinson should be charged with appellants’ claim, the former was not indebted to appellee, then there could be no use of this suit, as appellee would be paid off, and this claim would he Bobinson’s own matter; but should Bobinson’s interest in the firm of B. A. Culter & Company prove insufficient to discharge this obligation, then appellee might pursue his remedy against the appellants and Bobinson, first seeking payment for Bobinson’s interest in the firm of appellants, and after the affairs of that firm is wound up, and it being ascertained that Bobinson had no interest in it, appellee might, perhaps, ask for decree against appellants, but not till then. In the first place there are no issues in this case warranting any such action. This bill is a plain, simple bill by one firm to collect a debt in equity from another firm, the appellee being forced into equity for the only reason that by the strict rules of law, Bobinson being a member of both firms, suit could not be brought at law. There are no facts or peculiar equities set up in any pleading to show to the court why it was necessary to wind up the affairs of both these firms in order to do justice. As between the two firms, Bobinson and appellee were strangers to each other. The firms dealt with each other as strangers — as two separate and independent individuals would.
This course is necessary on account of a part of the members of the respective firms not having any interest in but one.
There was no equity in the one firm to compel a winding up of the other simply because one firm becomes the creditor of the other and was seeking a decree fpr its claim. Bobinson’s equities between the firms so far as the facts in this case show, are equally balanced and he must be regarded asa neutral$through whom neither, party can claim any equities. The claim of appellants that the amount of appellee’s demand to the extent of §3,000 should be regarded as not due till five years from date of their partnership with Bobinson, is not tenable.
The facts fail to show that appellee knew of the contents of this partnership agreement, or that he ever assented to the agreement to furnish appellants’ firm a credit to the amount of §3,000 continuously for five years.
He was requested by Bobinson to allow the firm of B. A. Culter & Company to furnish the new firm a credit to the amount of §3,000. That was all. He would have to assent to the five years' contract to bind his firm, which we think the evidence fails to show. The a1lowi~g of interest was proper after the adjustment of the amount, which, as we gather from the abstract, was some time in the fore part of August, 1885. As to tile last point we think the evidence fails to show that this account belonged to Robinson. The decree is tlierefore afiirnied~
Dee~ree ajirined.
