Wiswell v. Wilkins

By the Court. — This case is virtually decided by one decided last week at Burlington. As it respects the point litigated, there is no difference between this case and' the action of account between partners, where more than two persons are concerned in the division ol the net avails. Here, according to the facts in the case, accounts of the rents and profits and expenditures must be taken ; and the plaintiff is entitled to one half of the net avails, and the defendant to one fourth part, and Mr. Kingman to the residue. Now it is evident, that a division between Wisioell and Wilkins, while Kingman is no party to the suit, ought not to be, and cannot be, binding upon Kingman. When he sues, he may produce testimony, that will lead to a result very different from that produced by the trial between Wiswell and Wilkins. The effect would be that two separate recoveries would either leave Wilkins liable to pay out more than he ought, or will leave money in his hands, which does not belong to him; and yet [138] he or they, to whom it jointly belongs, will have no remedy'to obtain it; those judgements, already recovered, being a bar to any further claim. This view shows the absolute necessity of applying to chancery, where more than two are concerned, that one decision may extend to the rights of all concerned, and compel a payment from, and to, each according to their several duties and claims. Read & Turner, for plaintiff. Stevens & Smith & Royce, for defendant. The plaintiffs counsel have adduced many authorities, as near in point, as can be found in the books; but they all come short of showing the plaintiff’s right to recover in this action. They seem all to be cases, where one sues for his portion of a sum certain, or where the sum can be rendered certain by computation, without any accounting of varied uncertain items, before it could be known what sum would belong to the plaintiff. In the case before us, if the plaintiff’s claim had been for the half belonging to him, of a certain rent, say one hundred dollars a year, and this liable to no deduction for any expenditures for repairs, or any other object, those authorities would be in point to show the plaintiff’s right to recover, in assumpsit, his half of such certain undiminishable rent. But they do not tend to support the action of account, given by our statute, unless that account is to be rendered between, two persons, or two parties, only. If there were two defendants; whose interest was entirely joint, that would form no objection to this action. They would form one party. But where the account of uncertain matters is to be rendered between three or more parties, with each a several interest, whether this grows out of a 'tenancy in common, or a partnership, the remedy of either must be sought in a court of equity. The judgement of the county court, in favor of the defendant, is affirmed.