Wood v. Merrow

| Vt. | Mar 15, 1853

The opinion of the court was delivered by

Bennett, J.

It seems that in May, 1847, the parties to this suit formed a partnership, for the construction of section No. 12, on the Eutland and ■ Burlington Eailroad, on the west side of the mountain; and on the fourth day of June, 1847, they and one Marsh formed a new partnership, for the building of sections 6, 7, 10, 15, 16, and 20, on this same railroad; and on the 12th day of June, 1847, it was agreed by all, that section 12 should be included in this new partnership, and Marsh be a partner from the beginning, in building section 12.

The declaration is against the defendant as bailiff of the monies of the plaintiffs, received for the mutual benefit of the parties to this suit, and not to x’ender his account as pax-tner. The monies sought to be recovered of the defendant, were paid to him, as part of the capital stock of the fix-m, and to be employed in building the road. There are insuperable objections to the plaintiffs’ recovery. The first agreement between the parties to this suit, was rescinded by mutual consent relative to section 12, and Marsh became a partner from the beginning in relation to that section, as well as the others. If there are more than two partners, no action of account can be maintained to settle the partnership, at common law. The remedy was by a bill in equity. The declaration is not adapted to the state of facts in proof. The declaration is not against the defendant, as receiver, but simply as bailiff. Where the action is to recover money, which the defendant has received, and for which he ought to account, he should be charged as receiver. He is not bailiff, and the privity which exists in the present.case arises from the connection between the parties, as partners; and in such case the connection should be stated in the declaration; and between partners the action of account lies to recover a balance, which may be found due upon the settlement of the partnership concern, and not to recover a specific sum of money, which may have been received by one of the partners for the use and benefit of the concern.

Judgment of the County Court is afiirmed with costs.