Fisher v. Sweet

Myrick, J. The rulings in this case appear to have been consistent with the theory of the case adopted by the court; but we think that theory incorrect. The complaint is for money had and received and for services; the plaintiff averring that he and defendant were the owners of certain lands, and that said lands were farmed and ultimately sold, and defendant having received the proceeds thereof, and the proceeds of certain individual property of plaintiff, had failed to pay to the plaintiff his proportion, as well as compensation for his services in and about the farming of the lands. The defendant after denying the receipt by him of the proceeds of sales, averred a partnership between himself and plaintiff, and that all the transactions con [230] cerning the said lands and the crops thereof were partnership transactions, and that there had been no final settlement of such partnership affairs. We are of opinion that the plaintiff’s evidence shows the existence of a partnership between plaintiff and defendant as to the lands purchased by them, and as to farming the same, and that plaintiff cannot recover in an action at law, at least until the accounts have been settled. We are also of opinion that in an action at law or in equity, if plaintiff offered evidence tending to show that defendant had received moneys growing out of their adventures (whether as joint owners or as co-partners), the defendant would be entitled to show that such moneys had been disbursed in the due course of the business, and that whether the disbursement had been by the defendant in person or by the mercantile firm of which he was a member. It is not necessary to point out each.particular ruling and show its error; it is sufficient to say that the case was tried upon a wrong theory. There should have been an accounting between the parties. It was not necessary to have made the members of the firm of Sweet & Co. parties to this action; they had no interest in the partnership affairs as such; they were as to plaintiff and defendant merely factors, agents, account-keepers. Payments made by Sweet & Co., in and about the business of plaintiff and defendant, as such factors and agents, should certainly be taken into account in adjusting the affairs of plaintiff and defendant. How else could equity, even common justice, be done between them? In the action before us, the only recovery which could be had by plaintiff would be of moneys received by defendant as proceeds of the individual property of plaintiff; and as to such moneys the court erred in not permitting the defendant to show the direction in which those moneys had been disbursed. Judgment and order reversed and cause remanded. Thornton, J., and Sharpstein, J., concurred. Hearing in Bank denied.