Kendrick v. Tarbell

The opinion of the court was delivered by Redfield, Ch. J. I. It is said the report does not find that,. Tarbell acquired Spaulding’s interest in the partnership, but only that it was so understood. By this, we understand the auditor to signify that, no question was made upon that point, but that both parties conceded it. II. It is said the note was not a partnership transaction. We understand the auditor to find that, it was a partnership debt. It seems to us, no question whatever can be made upon this point,, upon the finding of the report. III. It is urged that the bond and awards were improperly ad-mitted. The auditor reports that, these were offered, to show that the plaintiff had made a previous payment, upon this note, which had been allowed him, and, also, that previous accounts between the parties had been adjusted in the arbitration. This object, merely,does not seem to us to be of any importance in this action, and we are not to suppose the auditor allowed them to operate for any other purpose. But, if they had been offered to show that the balance of this note was left unadjusted, by the arbitrators, it would have been entirely competent evidence, for that purpose. And it does not seem that they could have had any influence in obtaining an allowance of this part of the note, on the ground that another portfon of it, and other accounts, similarly situated, had been allowed, by the arbitrators, as those questions seem, by the auditor, to have been referred to the court. 1. So that upon the face of the report, the testimony seems to have been offered and received, to prove facts altogether unimportant, but which could not have prejudiced the defendant, and as we cannot, legally, suppose they were used for any other purpose, we (Ought not to set aside the report. [515] 2. There was a legal use, which would have made the papers admissible, but this fact does not seem very essential to be established, on the part of the plaintiff, viz., to show that- this claim was left unadjusted by the arbitrators. 1Y. The question of the right of the plaintiff to recover two-thirds of the defendant, seems the important inquiry in the case. At common law, aside from our late statute, this action must have been brought in chancery, to settle a partnership account, where there were more than two interests. But the statute of 1852, p. 8, § 2, in express terms, gives the county court the same powers, in settling matters of account, between partners, as courts of chancery have. And we entertain no doubt that a court of equity would, in a case like the present, sustain a bill, without joining Spaulding, and decree the defendant to pay two-thirds of any balance due the plaintiff. And if Spaulding had been joined, and the fact of Tarbell owning his interest had been shown in the case, the court of equity would, if the plaintiff so elected, give him his whole decree against the defendant; and, in case of Spaulding’s insolvency, without any assignment, divide his share of .obligation between the the solvent partners.. Judgment affirmed.