The defendant and one Peleg Rogers entered intered into a mercantile partnership in 1858, by which they agreed to share equally the losses and profits of the *Page 362 concern. In February, 1863, Peleg Rogers died, and during the month the plaintiff became his administrator.
At Spring Term, 1868, the plaintiff filed a bill for a settlement of the partnership, and at Spring Term, 1869, a commissioner was appointed to state the account of the defendant as surviving partner of the firm of P. B. Y. Rogers. The case is now before us by appeal from the ruling of his Honor overruling the report of the commissioner. We do not concur either with the commissioner or with his Honor.
The plaintiff seeks to charge the defendant with one-half of the value of a certain lot of cotton belonging to the firm at the death of the plaintiff's intestate. The facts necessary to a full understanding of the controversy are that the defendant in April, 1863, as surviving partner, sold a lot of cotton belonging to the partnership at public auction; that the plaintiff, administrator of Peleg Rogers, gave his consent and approbation to said sale as administrator, and was present at the same; that the terms announced publicly on the day of sale and concurred in by the administrator were a credit of six months, purchaser to give note, and such currency as should be in circulation when the note fell due would be received in payment of the same.
The cotton was purchased by one Calvin J. Rogers on account of himself and his partner, B.Y. Rogers, and they executed a note with security for the payment of amount bid. The note became due October 20, 1863, and was immediately discharged, amounting to $5,681.50, by payment to B. Y. Rogers as surviving partner, to whom it was made payable when executed.
The defendant immediately tendered one-half of said amount to the plaintiff, who refused to receive it. The defendant then consulted counsel, and acting under their advice, funded, as surviving partner, the share of P. Rogers, deceased, and obtained a certificate for four percent, registered *Page 363 bonds of the Confederate States, which certificate he has filed with the papers in the suit.
The commissioner failed to charge the defendant with anything on account of the cotton, but his Honor held that he should be charged with the value of the cotton and interest from the day of sale; the value to be ascertained by applying the scale to the amount bid for the cotton.
The defendant received $5,681.50, the full price of the cotton, for and on behalf of the partnership.
He seems to have acted in good faith, and in his settlement with the partnership he should be allowed, as a credit, the certificate for registered bonds of the Confederate States, but as he retained $2,840.75 of the cotton money he is clearly liable to account therefor to the partnership. In other words, he held the whole amount for the firm, and the firm lost that which was funded in Confederate bonds, and the firm is entitled to divide that which was not lost. But the scale as applied to contracts generally does not apply in this case. The defendant was acting in good faith in a fiduciary character, and is liable only for the value of the Confederate money at the time when it came into his hands.
There was error to the extent indicated.
Let this be certified.
PER CURIAM. Decree accordingly. *Page 364