Demmy v. Dougherty

By the Court. A new trial has been asked for in the present case on account of misdirection. The court instructed the jury that if a partnership was proved to have existed between the plaintiff, the defendant, and Mr. Seiler, and the accounts remained open and unsettled, the plaintiff was entitled to a judgment quod computet without proof that any money came into the hands of the defendant from any person whatever; and although common, it was not necessary to name any person in the narr through whom it was paid; and if laid, need not be proved. Was tins instruction correct? We were aware, at the time, that this was going a step beyond James v. Brown (1 Dall. 339); where McKean, C. J., says that the action should be liberally construed in this State, where we have no court of chancery; [237] and if a partnership was proved, that the defendant was the acting partner, and received any part of the money from any of the persons named in the narr, the court would uniformly compel him to account, not merely as to the moneys proved, but to settle an account in full. The same declaration .as to the necessity of a liberal extension of the action is reiterated by Tilghman, C. J., in Newbold v. Sines (2 S. & R. 321). Judge Washington, however, nonsuited the plaintiff, who failed to prove any money received from either of the parties named. Jordan v. Wilkins (2 W. C. C. R. 482). The subject is most fully and carefully examined by Judge Kennedy in Thompson v. Paul (6 Wh. 615), and nearly all of the ancient cases cited; for few modern ones can be found on' the subject out of our own State, the action having fallen into disuse where they have a court of chancery. The judge declares that the receipt of money on their joint account by the defendant is the very gist of the action of account render between merchant and merchant or partners in trade; and he argues that he never could be called on to account without proof that some of the money belonging to the partnership came into his hands. The same doctrine is clearly settled by Lord Coke. In commenting on the statute of III Edward, he says : “ Account will only lie against guardians in socage, bailiffs, or receivers,” and shows that it must be proved that money came to their hands (2 Just. 379). I could scarcely bring my mind to believe that where a partnership was proved to have existed by which each would be entitled to a certain portion of the profits, the acting partner could not have account against the dormant partner to compel him to bear his portion of the loss; yet such appears to be the settled law of Pennsylvania, as decided in McFadden v. Sallada (6 Barr, 283). Judge Coulter shows that no such suit will lie; but the remedy, if not provided for in articles of partnership, must be in chancery. He says the action for such a purpose is misconceived, and he who resorts to the action of account render will find it ill-defined in the books. The form of writ as given in Fitzherbert, N. B., shows that it will lie by one merchant against another to render a reasonable account for the time in which he was the receiver of the money of the plaintiff, from whatever cause or contract, coming to their common profit, joint benefit, etc. So that whether governed by precedent or authority, it would seem that it must be shown that the defendant received money for their joint benefit, or that goods came into his hands to be sold for the firm. The action will never lie where no money or goods have been received, but only a loss incurred; and there must be some person stated from whom money was received; or it must be stated that goods belonging to the firm went into the hands of the partner defendant to sell for their joint benefit, and that he never accounted for them. Haim, for plaintiff. Simonton, for defendant. In the case under consideration, the evidence showed a partnership between Dougherty, Seiler, and Demmy. It was proved that Dougherty furnished the money, but neither bought or sold; that Demmy purchased, and Seiler disposed of the goods. Yet we have required Dougherty to account, without proof that any money or property of the firm came into his hands. This is contrary to the rules of law regulating the action of account render. We are satisfied that we misdirected the jury in a material point, and therefore must order a new trial. We also greatly doubt the sufficiency of the narr, as it does not name any person from whom money was received on joint account; and if it avers, as in Demmy v. Seiler, that goods of the firm were received to be sold, it is unsupported by the evidence.