Treadway v. Ryan

3 Kan. 437 | Kan. | 1866

By the Oowrt,

Crozier, C. J.

Two questions are presented by the record in this ease : First, what will sustain an attachment in a suit by one partner against another on the ground of non-residency of the defendant ? Secondly, was this such a case ?

I. Section 199 of the Code of Civil Procedure, authorizes an attachment in any civil action for the recovery of money upon any one of nine enumerated grounds, with but a single limitation, viz : if the ground upon which the attachment is asked be the non-residency of the defendant, it must appear that the claim upon which the suit is sought to be maintained is a “ debt or demand arising upon con- • tract, judgment or decree.” Whenever it shall appear that there is due from the defendant to the plaintiff “ a claim arising upon contract,” and that the defendant is a non-resideht, the plaintiff will be entitled to an attachment no matter jjvhat may be the relations of the parties, whether partners or otherwise. The test in such case is, that the claim arises upon contract. Before an adjustment of the partnership affairs, and with a view to the enforcement of such adjustment, one partner may commence his suit against the other, and if he can show that upon a final accounting of the partnership matters, there will be due him from his copartner a particular sum of money for which he will be entitled to judgment or decree, he may have an attachment upon the establishing of any of the grounds mentioned in section 199, except that of the non-residency of the defendant. With reference to the other eight grounds it will be sufficient if the proceeding be a “ civil action for the recovery of moneybut in regard to the one mentioned, the proceeding must not only be a “ civil action,” but must be predicated upon a “ demand arising upon contract, judgment or decree.”

"When an action is brought by one partner against another to compel an accounting and payment of a balance, which it is alleged, will appear to be due the plaintiff upon such accounting, the suit is not upon a £í demand arising upon contract ” within the meaning of the section of the Code referred to. It is true the claim may arise out of a set of transactions made in pursuance of an agreement between the partners to jointly engage in such transactions ; yet the claim for the to-be-ascertained balance is not a demand arising upon the contract of partnership, but one arising out of the partnership transactions with third persons. If an accounting has been had, a balance ascertained, and a promise made to pay it, then a claim for such balance would be a demand arising upon contract— not the partnership contract, but the promise to pay made after the accounting. The promise need not be express, it may be implied. If the parties assent to the correctness of the accounting and admit the accuracy of the balance found, the law implies a promise to pay it. ^

Where suit is brought by one partner against another as for a balance found upon an accounting, it is necessary that an actual balance should have been struck or the quantities so agreed upon that nothing is left to be done but Simply the computation. It is not absolutely essential that the precise amount sued for should appear in figures upon the balance sheet. It will be sufficient if the balance can be ascertained therefrom by the ordinary process of accounts.

Upon the first question above mentioned, the court is of opinion that one partner can not maintain an attachment against the property of his copartner on the ground of the non-residency of the latter, upon a claim arising out of the partnership transactions, unless there first be an accounting and ascertainment of a balance which the defendant has promised expressly or impliedly to pay.

II. Was the case at bar such a case ? The attachment was issued for $6,889.28 for “balance found due and owing from said defendant to said plaintiffs on a settlement and statement of the accounts between said plaintiffs and said defendant on the 29th day of Dec. 1865 ; and that said balance is due from said defendant to said plaintiffs for money theretofore advanced by said plaintiffs to said defendant at his request.” Such is the language of the .affidavit. From this language alone it would be somewhat difficult to determine whether the sum claimed is charged to have arisen out of mutual transactions or was for a gross sum loaned by one to the other. But the proof makes the matter more lucid. That shows that the parties had been partners in the beef business; that the plaintiffs furnished money and services, and the defendant furnished cattle and services; that an adjustment of the accounts was attempted which the plaintiffs say was complete, and assented to by both parties, and which is denied by the defendant. The proof further shows that when the settlement was attempted, the calculations were made in ink upon a paper which was produced at the hearing, but which showed no ascertained balance; that after the defendant had departed, one of the plaintiffs, together with the amanuensis, from other calculations, which appear on the paper in pencil, arrived at the amount for which the attachment was issued. Unaided by explanation, it is utterly impossible to discover in the ink calculations the basis of the pencil calculation ; nor can the court find such basis after carefully reading the testimony of the plaintiff and amanuensis referred to, and attentively listening to the exposition of counsel. No system of arithmetic will furnish a rule by which the figures made in the presence and those made in the absence of the defendant, can be reconciled. How then could it be said that there was an accounting and the finding of a balance, which the defendant agreed to pay ?

The court is satisfied the case was not such an one as warranted the issuance of an attachment on tbe ground of the non-residency of the defendant.

The judgment of the court below will be reversed, the cause sent back with directions to the District Court to sustain the motion to discharge the attachment.

All the justices concurring.