31 Wash. 542 | Wash. | 1903
— This is an action in which the plaintiff sues the defendants for the partition of certain personal property owned hy them as tenants in common, and for an accounting of the profits received therefrom by the defendants while it was in their possession and used by them. Prom the judgment both sides appeal.
Talcing up the defendants’ appeal, they first contend that this is a suit in equity for an accounting between partners and that a court of equity in such a suit has no power to enter a money judgment against any of the parties thereto. This is not the rule. A court of equity has power in such a suit not only to state the account between the parties but to enter a judgment in favor of one and against another, as the state of the account may require. It never drives the parties to a second action to enforce its award. It is next objected that the finding that the parties settled their mutual accounts for the year 1894 is not supported by the evidence. This objection we think is well taken.
The plaintiff assigns error on the refusal of the court to enter a judgment in his favor against the defendants for the admitted value of the common property; it being contended that their refusal to acknowledge his right of possession when demand was made amounted to a conversion. But we fail to find error here. The suit is in equity for an accounting and partition, not an action at law for conversion, and the judgment followed the prayer of the complaint, and was fully as equitable as the circumstances of the ease warranted.
The judgment appealed from will therefore be modified by reducing the amount of the joint judgment against the defendants to $321; standing affirmed in all other respects. The defendants will recover their costs on this appeal.