McConnell v. Stubbs

LuMPKiN, J. (After stating the facts.) 1. The contract was not in dispute. The plaintiffs claimed that they were entitled to have the $5,000 repaid to them. The defendant denied it. The issue was fully made in the pleadings and the evidence, and the auditor passed on it and found in favor of the plaintiffs. The amendment introduced no new issue, but simply adjusted the prayer of the petition more specifically to the finding of the auditor and the evidence* submitted to him. There was no error in allowing such an amendment. Sterling Electric Co. v. Augusta Telephone Co., 124 Ga. 371; Milner v. Mutual Benefit Asso., 104 Ga. 101. 2. There was no error in overruling the motion to recommit the case to the auditor. It was not based on the ground that defendant desired to introduce further evidence or make further defense, but on the ground that the auditor had not taken the oath at the proper time. It was alleged, in an answer filed by plaintiffs to the motion, that this was distinctly waived by agreement of counsel for the respective parties, and that he acted on the agreement in delaying the taking of the oath. The court heard evidence on the subject, and overruled the motion. 3. Ordinarily, “in the absence of an agreement to that effect in the contract of partnership, a partner is not liable, upon an accounting subsequently to a dissolution of the firm, for a depreciation in the value of the manufacturing plant which is the subject of the partnership; but the loss caused by the depreciation must be borne by the partnership.” Houston v. Polk, 124 Ga. 103. In the pres [1044] ent case, tinder the contract the partnership was only to last for one year, unless continued in the manner provided for by it; and it declared that the plaintiffs should have one half of the net profits during the twelve months of its continuance. They contended that they elected to terminate the partnership and have their money returned to them, together with one half the net profits, as the contract provided. The defendant did not contend that there was a continuing partnership after that time so that the property, assets, and'business were those of an existing firm. He also asserted that the partnership had terminated, but claimed that he owed the plaintiffs nothing, and in fact was entitled to a judgment against them. He retained all of the property in his hands and denied any right on their part. Under such circumstances the auditor did not err in holding that the plaintiffs were entitled to an accounting for one half of the net profits as of March 17, 1903, the date fixed by the contract. On this subject see Miller v. Freeman, 111 Ga. 663; Laswell v. Robbins, 39 Ill. 209; Brown’s Appeal, 89 Penn. St. 139. 4. The failure of the plaintiffs to sell the leather did not result, under the facts disclosed in the evidence, in totalty destroying all rights on their part for an accounting. But the consequent additional expenses should be charged against them. 2 Bates on Partnership, 780; Stegman v. Berryhill, 72 Mo. 307; Funk v. Leachman, 4 Dana (Ky.), 24; Water Lot Co. v. Leonard, 30 Ga. 560(4); Lewis v. Chisholm, 68 Ga. 40(2). In Tutt v. Land, 50 Ga. 340(5), it was said: “When one partner seeks, by way of recoupment, to have a deduction made from the amount of the claim of the other in the profits, on account of fraud or neglect, or acts of disloyalty to the partnership, whereby the interest of the firm suffered damage, such deduction can not go beyond the amount of damage proven.” On page 353 Trippe, J., in delivering the opinion, said: “But it can not be the rule that one partner can set up that the other has been false to duty, and thereby he can claim all the assets, capital, and profits. He may recoup or claim for damages; but must show what the damages are.” 5. Several of the exceptions to the auditor’s report are too general in character, or fail to sufficiently set out or specify the evidence relied on to support them. But from an examination of the entire record we are of the opinion that no error .was committed which requires a reversal. [1045] Judgment affirmed-. All the Justices concur, except Atkinson, J., who did not preside.