The defendant admits that there was a partnership, which has been dissolved, and that there has been no full release or settlement of the partnership dealings. The : plaintiff is, therefore, entitled to an account,. The defendant contends, however, that the account should be limited to such *671partnership funds as he has received since 8tli March, 1872. The practice is clear, that if a defendant, who is called for an account, pleads a release, either in full or partial, or matter which in law amounts to a release, or pleads an account stated between the parties, either of all the partnership dealings, or up to a certain date, and these matters are put in issue by a replication, the issue must be found by a jury, before the right to an account can be determined; or if the release or account stated were only partial, before the extent of the account to which the plaintiff is entitled can be determined, and the form of the decree ascertained. Douglas v. Caldwell, 64 N. C. Rep., 372; Price v. Becles, 73 N. C. Rep., 162; Morton v. Lee, 73 N. C. Rep., 21.
So that the only question before us is, has the defendant in his answer plead matter which if found to be true, would exonerate him from an account of dealings prior to March 6th 1872. In considering the answer, it is necessary to distinguish what is stated as fact, from what appears to bo stated as conclusions of law. The answer states that on March 6th 1872, the plaintiff called on the defendant “ for a dissolution and final settlement of the firm affairs. This disclosed the fact that Mr. Smith had in his hands considerably more than his share of the profits to date,” which he said he was then unable to pay, and offered if defendant would loan him $100 to surrender all claim on the firm, except for such sums as the defendant might be willing to allow, mainly on certain contingent fees. It must be assumed that defendant gave plaintiff the $100, although that is not expressly stated, and the plaintiff then delivered to the defendant the following writing :
“ $100.00.
Received of R. Barringer one hundred dollars, money advanced by him to me on the dissolution and settlement of the affairs of Barringer & Smith, and he is to go on and wind up the affairs of the firm and pay over to me such sums as *672may be justly due me after this date, taking into account the additional trouble he may be at.
(Signed) W. M. SMITH,
Staunton, Ya.”
March 6th, 1872.
This writing is in ambiguous terms. The defendant is to pay to plaintiff such sums as may be justly due to him after this date. To what do the words, “ after this date ” apply ? It may be, that payment is thereafter to be made. It is not said “ which shall become due hereafter.” Taking the writing by itself, it cannot be construed with any certainty as purporting to release the prior indebtedness of the defendant, and the circumstances, attending the execution, do not make it clearer in that direction. The defendant does not positively say that plaintiff agreed to release him. No account was stated which would seem to be the usual, if not the necessary basis of a settlement, nor does defendant say, that nothing was then owing to the plaintiff. It is true, he says, “ this disclosed,” &c.; but “ this ” refers, grammatically, to plaintiff’s call for a dissolution and settlement, and it would be a very uncertain way of stating that a settlement was had, from which it appeared that the plaintiff liad received more than his share of the profits. We are of opinion that the answer does not amount to a sufficient averment either of release, accord and satisfaction, or of an account stated and agreed to.
The account must be of all the partnership dealings, as well of those before, as after, March 6th, 1872.
Judgment affirmed, and case remanded. Let this opinion, be certified.
Per CuriaM. Judgment affirmed.