Administrators of Jennings v. Chandler

[25] By the Court, Cole, J. We have come to the conclusion to affirm the order of the circuit court in this case. And we do so upon the ground, that the appellant does not deny in his answer, all the allegations of improper management of the partnership affairs, made in the complaint, with such fullness and particularity as show that there is no equity in the complaint. Indeed, there are circumstances and facts admitted in his answer, which go to show that there is danger of an abuse or misapplication of the partnership assets. We refer to the admission in the answer, that since the death of Jennings, he has purchased goods on his own account, and caused them to be placed in the store and sold in connection with the goods of the firm ; and it does not appear that any separate accounts are kept of the sales of his own property, and the property of the firm. In this confusion and mixing up of the affairs of the partnership, and of his own personal matters, we cannot see how a proper settlement of the partnership business can ever be arrived at, between him and the administrators. It will be impossible to determine what expenses and what profits are justly chargeable to the partnership, and what not. Although the appellant, as surviving partner, has the exclusive right to the books, choses in actio^ and assets of the partnership, for the purpose of closing up the affairs of the firm, he is not authorized either by general principles of law, or any stipulation in the articles of copart-nership, to replenish the stock and continue the business in the confused manner he has done. Again, he says in his answer that no part of such proceeds of the business has been applied to his personal and individual liabilities, beyond the ordinary and necessary expenses of supporting himself and family. But certainly the partnership ought not to be charged with the support of him and his family. This is obvious. Some stress is laid upon the fact that the appellant denies, that upon a fair settlement of all the business of the firm and [26] the payment of the debts owing by it, that there will not be coming out of the assets of the firm, to the administrators of the estate, any sum whatever. Admit that the partnership will prove to be insolvent on final settlement, yet it is manifest that the administrators have a direct interest in reducing the liabilities of the partnership as much as possible, since the estate they represent may be holden for any such liability, after the partnership means are exhausted. If the appellant wishes to retain possession of the partnership property and continue the business, he can do so by giving the security required in the order. Under the circumstances we do not think this an unreasonable or onerous condition. See Hartz vs. Schrader, 8 Ves., 317; Burden vs. Burden, 1 Ves. & B., 170; Franklin et al. vs. Robinson, 1 J. C. R., 157; Bradford vs. Kimberly et al., 3 id., 431. The order of the circuit court is therefore affirmed.