The complaint in this action was clearly in an action at law. It states that the plaintiff and defendant were copartners in mercantile business; that they dissolved their copartnership in December, 1868, at which time it was agreed that an inventory should be taken of the assets of the firm, including the notes and accounts due to it, and that the defendant should pay the plaintiff one half of the amount of the inventory, deducting a certain debt due from the plaintiff to one McCormick, and also deducting one half the liabilities of the firm, which the defendant assumed to pay; and that thereupon such inventory was taken, the precise amount due to the plaintiff ascertained and agreed upon, and the defendant went into possession, and has ever since held the possession. The complainant also claimed to recover for the services of his minor son, who, he alleged, had been employed by the firm, on a quantum meruit agreement; and
The demand for judgment also contained a demand that an account of the partnership dealings be taken, and that the plaintiff have judgment for the balance found due him on such accounting.
The answer sets up that the agreement was that the defendant should take the goods and pay the debts of the firm, and should pay the plaintiff one half the value of the goods after the debts were paid; and that the notes and accounts due the firm were to be left with the defendant for collection, and the plaintiff’s one half was to be paid over to him on collection. The referee found the agreement to have been different from the statement of either party. He found that the plaintiff sold out his interest in the stock of goods of said firm to the defendant, without specifying the time for the payment thereof; that an inventory was taken of the goods, and they were left and remained in the possession of the defendant; and that it was also then agreed that the notes and accounts due the firm should be kept in the possession of the defendant, and he should collect the same, and should pay the debts due by the said firm. That they were so left, and that the defendant had collected a large amount thereof, and had paid all the debts of the firm, and the debts due from the plaintiff to McCormick, which he finds were paid at the request of the plaintiff, without finding that it was a part of the agreement on the dissolution, that it should be so paid. Upon the state of facts so found
If this were an action for an account in equity, the judgment ordered by the learned referee would, I think, be imperfect. In such a case, the final judgment between the parties should fully settle and finally determine all the questions between them, arising upon an accounting in respect to the affairs of the copartnership. In this case the referee has left open the door for an indefinite number of further suits concerning amounts which may hereafter be collected, or adjudged to have been collected, on the notes and accounts still remaining uncollected, and the number, amount or value of which are wholly undetermined by the 'judgment. In such a case a receiver should have been appointed to collect or sell the uncollected assets, and the final judgment should have disposed of all accounting between the parties as to such remaining assets. But I am of the opinion that the referee erred in going into th^ proceeding to take an account.
The complaint was upon a promise to pay an agreed
As to the claim set up in the complaint, on account of the services of the minor son of the plaintiff, the referee finds against the plaintiffs, and that he has no claim on that account, either against the firm or the defendant, as he finds that instead of the agreement on that subject being as set out in the complaint, it was agreed between the parties, that the services of the son should be set off against the rent of the store occupied by the parties, and which belonged to the defendant; so that the cause is disembarrassed of whatever doubt might have been thrown over the character of the action by the fact that such claim was set up, and which, as stated in the complaint, would seem, if it had any existence, to be a claim against the firm. At the last June term we re
There are various other questions, as to the admission of evidence, and the findings of the referee, touching the accounting, but as I am of the opinion that the judgment must be reversed, for the fundamental error in going into the accounting at all, I have not considered them.
The judgment should be reversed and a new trial ordered, costs to abide the event.
Mullin, P. J., and Johnson and Talcott, Justices.]