13 S.W.2d 826 | Ark. | 1929
STATEMENT OF FACTS.
J. Byrd Wright and Paul Hanry brought separate actions in the circuit court against P. G. Lake to recover several items which, it is alleged, he fraudulently withheld in settling with each of them for three different years of the earnings of a partnership. In each case the circuit court sustained the demurrer of the defendant to the complaint, and dismissed the complaint at the cost of the plaintiff. Each plaintiff duly prosecuted an appeal to this court, and, by consent of the parties, the appeals were consolidated, because the issues in each case were the same. On that account it will only be necessary to abstract the complaint in one case. In the case of J. Byrd Wright against P. G. Lake the amendment to the complaint alleges that P. G. Lake was the principal stockholder and general manager of the Star Clothing House, which is a partnership in which P. G. Lake and Mrs. P. G. Lake had the principal interest, and J. Byrd Wright and P. E. Hanry also had an interest. Continuing, the complaint reads as follows:
"The book distribution of the earnings of the partnership for the year 1922, among other things, shows a distribution to the plaintiff's earnings in the sum of $1,187.17, and the actual distribution should have been $2,103.40, showing earnings on the stock of plaintiff in the sum of $916.23 more than was paid him. This was information which the defendant, P. G. Lake, had, but said information was concealed by the defendant for the purpose of avoiding the payment of said $916.23 which was due the plaintiff from the earnings of said company for the year 1922. A certified copy of the partnership return for the year 1922 is attached hereto and made a part hereof. During the year 1923 the earnings of the Star Clothing House were $1,374.73 on the stock of the plaintiff, and the defendant, P. G. Lake, paid to said J. Byrd Wright the sum of $936.60, and appropriated to his own use the additional sum of $435.13, which should have *1186 been paid to the said J. Byrd Wright as part of the earnings of his stock for the year 1923. A certified copy of the partnership return for the year 1923 is hereto attached, marked Exhibit C and made a part hereof. The return of the Star Clothing House on the earnings of stock of the plaintiff for the year 1924 shows the sum of $951.90, and the amount received by said J. Byrd Wright was $884.48, leaving a balance of $67.42, which was appropriated by the defendant, P. G. Lake, to his own use, and not paid over to the plaintiff. A certified copy of the partnership return for the year 1924 is hereto attached, marked Exhibit D, and made a part hereof."
The complaint then alleges that the plaintiff left the partnership in 1925, and on October 1, 1926, he received notice from the United States Revenue Department advising him that he owed the Government additional income for the year 1922. The plaintiff alleges that it had no means of ascertaining what the partnership earnings were, and relied upon the annual settlements made with him by the defendant, P. G. Lake. Continuing, the plaintiff alleges:
"The concealment practiced by the defendant constituted a fraud on the rights of this plaintiff, and this fraud was not discovered by the plaintiff until the first of October, 1926, and the plaintiff had no way of ascertaining the facts as to what was due him from the earnings on his stock in the Star Clothing House, and relied implicitly upon P. G. Lake, the manager, believing all the time that the amounts that were due this plaintiff for the years above mentioned, and this plaintiff, as soon as he discovered the fraud that had been practiced on him, immediately took steps to ascertain what was due him, and make collection of same."
The prayer of the complaint is for judgment for the several specified sums.
(after stating the facts). The court sustained a demurrer to the complaint in each case, and *1187
rendered judgment accordingly. The allegations of the complaint are the same, except as to the amounts due, and the demurrer confesses them to be true. Contrary to the common-law rule, under our Code every possible intendment and presumption is to be made in favor of a pleading, and a complaint will not be set aside on demurrer unless it be so fatally defective that, taking all the facts to be admitted, the court can say that they furnish no cause of action whatever. Sharp v. Drainage District No. 7,
Counsel for the defendant first seek to uphold the judgment of the circuit court on the ground that the cause of action is barred by the statute of limitations. We do not agree with counsel in this contention. According to the allegations of the complaint in each case, the defendant concealed from the plaintiff the withholding of certain part of the earnings of the partnership for the three years set out in the complaint. It is alleged that the plaintiff had no voice in the management of the business, and did not actively assist in carrying it on. On the contrary, it is alleged that the defendant Lake was the actual manager of the business, and fraudulently concealed from the plaintiff that he had failed to pay him a part of his earnings for the three years specified in the complaint and that he had converted same to his own use. It is further alleged that notice of the fraud was not acquired by the plaintiff until October 1, 1926. The original complaint was filed on the 8th day of April, 1927, and summons was served on the defendant on the 9th day of April, 1927. The amendment to the complaint was filed on May 26, 1928. Therefore the cause of action is not barred by the statute of limitations. It is well settled in this State that, where there has been a fraudulent concealment of the cause of action, the statute of limitations does not begin to run until the fraud is discovered. Conditt v. Holden,
Counsel for the defendant also seek to uphold the judgment of the circuit court in sustaining the demurrer to the complaint under the well-settled rule that, in a suit for accounting and settlement of partnership affairs, the jurisdiction of equity is practically exclusive. Short v. Thompson,
There are certain exceptions, however, to the general rule. In the instant case the partnership had been dissolved, and the plaintiff in each case had sold out his interest to the defendant Lake. The wrong complained of does not involve a readjustment of the partnership business or accounts. The contract of dissolution stands, and the partnership relation no longer exists. The ground of action is in no way connected with the state of the partnership business, except that the defendant is alleged to have withheld from the plaintiff a part of the profits for three different years and to have converted the same to his own use. A certain specified and definite amount is alleged to have been withheld by the defendant for three different years, and to have been fraudulently converted to his own use. The alleged fraud and deceit is not asked to be a ground for setting aside the settlement between the partners or for reforming the accounts. The right of the action in this case is the alleged tort of Lake in fraudulently withholding from the plaintiff in each case a certain part of the profits of the partnership for three different years, and converting the same to his own use. The former partnership between the parties is in no way concerned, and there is nothing in the former partnership relation which prevents the maintenance of this action for the alleged deceit. Crockett v. Burleson *1189
This principle was recognized and approved by this court in Hamilton v. McGill,
It follows that the court erred in sustaining the demurrer to the complaint in each case, and for that error the judgment must be reversed, and the cause remanded for further proceedings. In this connection it may be stated that a defendant sued at law must make all the defenses he has, both legal and equitable; if any of them are exclusively cognizable in equity, he is entitled to a transfer to equity. Dunbar v. Bourland,
It follows that the judgments will be reversed, and the causes will be remanded for further proceedings according to law and not inconsistent with this opinion.
