delivered the opinion of the Court:
This was a bill in chancery, filed by the appellees against the appellants for the settlement of a partnership account. The case was heard on bill and answer, and the court decreed the defendant, Derby, to pay the complainants, Gage and Tucker, §5,500, the sum originally invested by them.
The bill alleges a partnership, for the purpose of buying cotton, to have been formed between the complainants, the defendant Derby, and several other persons, to which various sums were contributed by the different parties. From the answer it appears that the entire capital and business were under the control of the defendant Derby—that the venture for the purchase of cotton resulted in no profits, but in saving about the capital invested—that two of the partners then retired and others were received into the concern—that the complainants allowed their §5,500 to remain, and that the capital and business remained as before, under the control of Derby. He took a boat load of goods to Vicksburg, with a view of selling them and buying cotton. He says in his answer that he sold the greater part of the goods, but was not permitted to buy cotton, and returned with the unsold goods, which are now stored in Chicago. He admits that he has paid two of the partners the amount invested by them, thinking there would be no loss, but he thinks nothing will be made, and that if he charges his expenses, which he claims the right to do, there will be a loss of about four hundred dollars. He says, however, he is willing to pay the complainants the amount invested by them, if they will allow him $2,480, which he claims to be due from them to him on a transaction not having the most remote connection with this partnership.
We are inclined to the opinion, judging from the general spirit and character of this answer, that no great injustice has been done by this decree. At the same time we cannot affirm it without disregarding the settled rules of chancery practice, which the appellant has a right to, and does invoke. The decree proceeds on the ground, and indeed recites, that Derby admits the possession of $5,500 belonging equitably to complainants. This is an error. He says the goods are not all sold, though he admits the greater part of them are, and says the residue are still in store at Chicago. There is nowhere in Ms answer, an admission that he has in his hands either $5,500, or any other specific sum, belonging to the complainants. The answer is evasive, and the complainants should have excepted to it and compelled a specific statement of the amount of goods sold and unsold, or have filed a replication, and taken proof on these points. But the case having been heard on bill and answer, the latter must be taken as true, and all that it contains in support of complainants’ case is the admission that the defendant has sold the larger part of the goods. This is altogether too indefinite to form the basis of a decree. The fact that he has paid two of the partners their capital invested, must be taken with the explanation given in the answer, that he did so under the belief that on the sale of the unsold goods, there would be no loss. This, however, does not bind him to anticipate the sale of the goods in settling with the other partners.
The claim of set-off, made in the answer, is inadmissible. , If could, in any event, only be heard upon a cross-hill, and a cross-bill should not be permitted to be filed for that purpose unless it is shown to the court by affidavit, that the complainants are in such pecuniary circumstances that the alleged claim is likely to be lost unless allowed to be set off. As already stated, the claim has not the slightest connection with the subject matter of this suit, and is for unliquidated damages.
The complainants will have leave to except to the answer, or to file a replication and take proof. If, however, all the facts stated in the answer are true, it would appear that there are partners who have not been made parties to the hill, in which event the complainants must amend. It is evident, from the answer, that there is some sum coming to complainants from the defendant Derby, and when this sum is ascertained, the court will give a deeree for the amount and for interest upon it from the time when complainants demanded payment.
Deeree reversed.