Milligan v. Mackinlay

Mr. Chief Justice Hand delivered the opinion of the court: We are of the opinion that the declaration did not state a cause of action, and that the demurrer thereto was properly sustained. Under the decisions of this court the relation existing between the members of said syndicate was that of partners; (Morse v. Richmond, 97 Ill. 303; Winstanley v. Gleyre, 146 id. 27;) and the doctrine is well settled that an action at law will not lie in favor of one or more partners, or their representatives, against one or more co-partners, or their representatives, upon a demand growing out of a partnership transaction, until there has been a settlement of accounts and a balance struck. (15 Ency. of PL & Pr. p. 1005.) As it does not appear from the declaration that the defendant has been guilty of fraud in withholding payment of said sum since the decree was entered, an action in tort in favor of the plaintiff will not lie for the amount found to be due him by the decree. To hold that an action in tort would lie in favor of the plaintiff would be to hold, in case of the misappropriation of funds by a partner, that so soon as' the amount due each partner upon a bill for an accounting had been determined, the partner in arrears would become immediately liable in tort to his co-partners, respectively, for the several amounts found to be due them, the effect of which would be to make the decree the basis of an action of tort, and not the wrong of the defendant, as prior to the entry of the decree no action at law could be maintained against the partner in default by his co-partners, or either of them. Such is not the office of a decree in chancery. The judgment of the Appellate Court is affirmed. Judgment affirmed.