38 A.D. 451 | N.Y. App. Div. | 1899
This is. an action for a partnership accounting of the affairs of the firm of Van Name Brothers, which, for many years,"carried on the business of raising oysters in Virginia and Connecticut, and selling them in the city of New York. There were three members of the firm, Jacob Van Name, who is the plaintiff in this action; William H. Van Name, one of the defendants and the appellant herein, and Peter Van Name,, Sr., who is represented in the present suit by his son, Peter Van Name, Jr., as administrator with the will annexed. Peter Van Name, Sr., attended to the business of planting, growing and gathering oysters in Virginia. Jacob Van Name devoted his time chiefly to the care of the firm’s vessels engaged in the oyster trade, and to the planting and gathering of oysters in Prince’s Bay at Staten Island. William H. Van Name had charge of the financial part of the business of the firm, keeping his office on a scow at the foot of West Tenth street, and for a time at the foot of West Fourteenth street on the North river, in the city of New York.William IT. Van Name, either personally or through the agency of his nephew, Peter Van Name, Jr., kept the bank books of the firm,
The case on appeal is" voluminous and complicated, and counsel could have rendered much greater assistance to the court by arguing the appeal orally instead of submitting it upon printed briefs.
The first point made in behalf of the appellant is that the action must fail because no account was taken of all the partnership transactions from the beginning, and because there was no possibility in the case of making and stating the partnership account. Counsel cites the American and English Encyclopsedia of Law in. support of the proposition that “in a suit for a partnership accounting where there are issues as to the state of the firm’s affairs and business, or state of the accounts between the partners, the burden of proof is on-the plaintiff, and if he cannot furnish sufficient evidence to enable the court to state a partnership account his suit necessarily fails to that extent.” (Vol. 17, p. 1291.) It is quite true that in the present case the materials from which to make up a full and complete account of the affairs of Van Name Brothers were not as abundant as could be wished. The appellant in managing the finances of the partnership had not kept books covering the whole
Of course, it would have been very desirable to have a more complete inquiry into the affairs of the firm, resulting in a much fuller
The second proposition stated in the brief for the appellant is that the acts of the partners create a conclusive presumption of a settlement and mutual accord which will not be disturbed. It is argued that the members of this firm “ went on in their simple way for years, entirely satisfied to keep no regular books, have no account of stock, no trial balances, no balance sheet drawn off, showing how either the firm or its members stood, but each doing all he could and drawing out for himself what he chose, and often paying taxes and other bills jointly without any consideration of whether one was getting more than the other or not.” Assuming this to be a correct statement of what was done, it by no means follows that the members of the firm intended, when the business should be wound up, that no account should be taken of the question whether one partner had received more than his share of the earnings or not. There being no express agreement as to the shares of the respective partners, the law implied that they were equally interested in the partnership property and profits. (Gould v. Gould, 6 Wend. 263, 267; Ryder v. Gilbert, 16 Hun, 163,168.) In view of this presumption it cannot be held that they had agreed to an unequal division of the ■earnings, merely because they went on doing business for many years without having any accounting with one another in reference to the business.
The third of the appellant’s points relates to a number of exceptions to rulings which are alleged to constitute reversible error.
A careful consideration of the facts of the case, as disclosed by the record, affords no reason to believe that the appellant has been unjustly dealt with in the result reached, by the referee-. - In my opinion, therefore, we should affirm the judgment and order appealed from.
All concurred, .
Judgment affirmed, with costs.