40 La. Ann. 676 | La. | 1888
The opinion of the Court was delivered by
This case was before us at our last term at this place, upon exceptions filed by the defendant and maintained by the lower court. We then reversed the judgment, overruled the exceptions and remanded the case to be tried on the merits. Thompson vs. Walker, 39 Ann. 892.
As stated in that opinion, the action is fora settlement of a partnership between the parties. One of the exceptions was that the partnership had been finally settled. We stated that this exception properly belonged to the merits.
The defendant now answers setting up again that the partnership has been fully settled, by a notarial act, and that the only matters outstanding and which it is the object of the present action to recover, are individual personal claims by plaintiff against defendant, which cannot be enforced under the guise of an action for settlement and against which he pleads prescription.
As indicated in our former opinion, the notarial act referred to is not, and does not purport to be, a final settlement, but only a partial one. The matters touching which the present controversy arises, were expressly exempted by the following language, viz: that they “ are hereby specially reserved in this settlement and are to be finally adjusted, settled and concluded by referring the same to arbitrators,” etc. The arbitrators have never been appointed or called for by either party, and no offer or demand for arbitration is now made. Plaintiff’s right to sue for a completed settlement of the partnership so as to embrace these matters cannot, therefore, admit of question.
They are matters arising out of the partnership relations and recognized by both parties, in the notarial act referred to, as properly
The evidence leaves no doubt as to the correctness and justice of plaintiff’s claims, and Ahíect. of this technical defense seems to be to subject tin They consist of funds retained by Walke ... cnership, out of the share coming to Thom} ____. jjreiense of certain rights claimed by Walker which are the subjects of dispute and were reserved, as stated above, in the settlement. The effect of the judgment now rendered, is to settle this dispute, to complete the settlement and to award to Thompson his share of the partnership funds which had been retained by Walker, as liquidator.
Judgment affirmed.
