The plaintiff J. O. Gaskill and J. O. Spence conducted a private bank of deposit under the firm name of *383J. C. Spence & Co. The firm was dissolved by the death of Spence. The plaintiff as surviving partner administered on the partnership estate. The defendant E. E. Adams was appointed administrator of the individual estate of Spence. The plaintiff claims that Spence had the entire charge or management of the business of the bank, and that he misappropriated or failed to account for about $1,200 of the money of the bank, that is, that the actual assets of the bank at the time Spence died were less by about $1,200 than shown by the books. The present action is against the administrator of the individual estate, and the plaintiff sets forth in his petition the foregoing facts, and prays for an accounting, and that plaintiff have judgment against the estate of Spence for whatever amount the deceased was owing the partnership.
The answer is a general denial. The case was sent to a referee to take testimony. The- result of the reference, as shown by the report of the referee, was that the assets of the bank as shown by the books, amounted to $16,489 at the time Spence died, and that,the value of the actual assets as inventoried at- the time amounted to $15,329, leaving a shortage of $1,160. The defendant- filed numerous exceptions to the report- of the referee, whic-h the circuit court overruled, and thereupon a judgment was entered in favor of plaintiff as surviving partner against the defendant administrator for $1,053.55. The defendant has appealed.
There is some discussion or difference of opinion expressed in the respective briefs of counsel as to the character of the action, that- is whether it must be treated as an action in equity for an acounting, or be dealt with as an action at law for debt. The former view must prevail. We are clear as to this. In a legal view the partner is at no time a debtor of his firm or of his co-partner, until shown to be so on a settlement of the co-partnership business. As to the partnership business he may, by his conduct or promises, incur a contin*384gent liability to his co-partner, which a court of equity will enforce against him in an action for an accounting. Burleigh v. Harris, 8 N. H. 263; 2 Bates, Part., sec. 761; sec. 895, note; sec. 883; Smith v. Smith, 33 Mo. 557; Leabo v. Renshaw, 61 Mo. 292; Scott v. Caruth, 50 Mo. 120.
Treating the action as one in equity for an accounting the decree can not stand. The investigation of the referee pertained only to the discrepancy between the assets of the bank at the time of the death of Spence and those shown by the books. There was no attempt to ascertain and state the accounts between the partners, or to show the condition of the affairs of the bank, and that the amount alleg’ed to be due from the estate of Spence was needed to pay -the debts of the bank.’ Unquestionably the estate of Spence would be properly chargeable in the accounting for losses accruing through the misappropriation or conversion of the assets of the bank by the deceased, but the mere finding that he had done -so and to what amount, did not authorize the judgment of the court. It must be remembered that the accounting is between the members of the firm and for an equitable adjustment of their partnership accounts, therefore it can not be said that the estate of Spence is liable in the action for any amount, unless it was shown that the amount converged or some portion of it was necessary to equalize the accounts between Spence and 'Gaskill, or unless it was shown that the amount was needed to pay the debts of the1 bank. As these matters were not shown at the trial, there is no justification for the judgment. It will therefore be reversed and the cause remanded.
All concur.