Fry v. Potter

Dubeee, O. J. This is an action of as-sumpsit brought by the executor of the will of Joshua Godfrey, to recover of the defendant one third of the losses of a land speculation in which Godfrey was concerned with the defendant and one John G. Edwards. Testimony was submitted at the jury trial, going to show that in May, 1872, Godfrey purchased five lots of land in the city of Providence, in pursuance of an understanding between himself, the defendant, and Edwards, subsequently expressed in writing and signed by them severally, that they should share equally in the profits and losses of the speculation ; that all the money was advanced by Godfrey, and the land conveyed to him ; that the land had been disposed of at a *543 heavy loss; and that, previous to tbe action, tbe plaintiff bad rendered an account to tbe defendant, showing tbe expenses and receipts, and tbe amount for wbicb tbe defendant was liable under tbe agreement. Tbe testimony did not show whether tbe defendant bad either admitted or denied tbe account, or in fact whether be bad or bad not done anything in reference to it. Tbe defendant, without offering any testimony, moved for a nonsuit, on tbe ground that tbe action, being for money due from one partner to another on partnership account, could not be maintained without proof that the copartners bad settled tbe account and found tbe amount of tbe defendant’s indebtedness, and that tbe defendant bad promised to pay it. Tbe court denied tbe motion, ruling that tbe action would lie without such proof, and that there was evidence on wbicb tbe plaintiff was entitled to go to tbe jury, and, tbe defendant offering no further defence, so instructed tbe jury, who thereupon returned a verdict for tbe plaintiff. Tbe defendant petitions for a new trial for error in the instruction. James Tillinghast, for plaintiff. Benjamin N. Lapham, for defendant. We think tbe instruction was right. There was no general co-partnership, but only an agreement to share the gains and losses of a particular adventure, tbe entire capital for wbicb was furnished by tbe plaintiff’s testator. There were no joint debts or liabilities, and no mutual claims subsisting to be adjusted. Tbe transaction was closed, and tbe losses ascertained. Nothing remained for tbe defendant to do but pay bis share of them. Tbe case is not intrinsically distinguishable from an ordinary case in assumpsit, and, even without precedent, we should have little difficulty in maintaining tbe action. There are, however, respectable precedents for it. Robson v. Curtis, 1 Stark. N. P. 78 ; Buckner v. Ries, 34 Mo. 357 ; Wright v. Cumpsty, 41 Pa. St. 102. In Massachusetts, even when tbe copartnership is general, tbe action is maintainable, after dissolution, for a final balance of account. Williams v. Henshaw, 11 Pick. 79 ; Wheeler v. Wheeler, 111 Mass. 247, 250. Petition dismissed.