Wycoff v. Purnell

Baldwin, J. The defendant demurred to the petition of plaintiff, and assigned as cause of demurrer, that the petition showed that it was a controversy for the settlement of partnership matters, and its subject matter was one of exclusive chancery cognizance; also that an action at common law would not lie for the matters and things set up in the petition. It is contended by counsel for appellee, that one partner can not sue another at law for an unsettled account, and that chancery has exclusive jurisdiction of unsettled matters between partners. Upon this point there is no controversy. But it is also claimed by appellant that the principle is fully and clearly settled that one partner can maintain an action at law against his copartner upon an amount found to be due him upon settlement, and account stated. We think the current of authorities show this to be the proper and settled rule. While in some courts it has been held, that upon a settlement of partnership accounts, an express promise to pay is essential to support an action, yet in most of [334] the States it has been held that where there has been a settlement and balance ascertained, the law itself will imply a promise to pay. Collyer on Partnership, sections 278,279, 280, and note ; Story Eq. Jnr. section 644 and note. Whether this is a suit at law to recover upon a promise by defendant, either express or implied to pay a balance ascertained to be due upon settlement, or a proceeding to recover an amount unliquidated between partners, must be determined by the language of the petition. It is averred in the petition that the partnership had been dissolved; that the property of the firm had been disposed of, and upon a settlement and account stated, there was due from the defendant to plaintiff the amount claimed in the petition. We think that the plaintiff shows by his petition, under a fair and natural construction, a cause of action properly maintainable in a court of law. That while the petition is defective in not setting forth fully the character of the settlement of the partnership business, yet it shows also that the partnership was ended; that the account between the plaintiff and defendant, as partners, was no longer a matter of controversy; that the amount sued for had been agreed as due to plaintiff; which, if established by evidence the plaintiff had a right to recover. Judgment reversed.