Sikes v. Work

Bigelow, J. The evidence in this case fails to show a partnership in regard to the real estate owned by the parties. There was no agreement between them to share the profit and loss of the joint undertaking, which is the essential and distinguishing feature of the contract of copartnership. The relation of the parties was only that of tenants in common. For the money expended by the plaintiff with the consent and knowledge of the defendant in erecting buildings on the common estate, the latter became indebted to the plaintiff for his share or proportion as for so much money laid out at his request. The legal effect of the transaction is the same as where two persons agree to build a ship together to be owned by them in common in certain proportions. It is well settled that this does not create a partnership between them. Merrill v. Bartlett, 6 Pick. 46. Thorndike v. De Wolf, 6 Pick. 120. But even if there was a partnership originally subsisting between them as to the real estate, as there was in regard to the business carried on by them, this would not prevent the plaintiff from maintaining this action to recover the amount due him as the result of their copartnership transactions. By the well settled rule of law in this commonwealth, an action may be well maintained by one copartner against another to recover a final balance remaining due upon a close of the business of a firm after its dissolution. Nor is it necessary that this should be a fixed ascertained balance as the result of a settlement of the accounts of the firm between the partners. It is enough if it appear that the firm is dissolved and that there are no outstanding debts due to or from the copartnership, so that the action of assumpsit to recover the balance due one of the firm will effect a final settlement between the copartners. Wilby v. Phinney, 15 Mass. 116. Williams v. Henshaw, 11 Pick. 79, and 12 Pick. 378. In the case at bar, the evidence was sufficient to show, that the partnership was at an end, and that there were no debts due from the firm. The small debt due to the firm, being .barred by the statute of limitations, was clearly a worthless claim, and being assigned to the defendant ought not to defeat this action. Brinley v. Kupfer, 6 Pick. 179. Plaintiff entitled to recover