Webb v. Fordyce

Rothrook, J. — It appears from the report of the referee that the money used, in the business of the partnership was kept on deposit in certain banks, and that “each member of the firm had a right to draw on the partnership funds, the check when paid being the account against the partner in whose favor it was di'awn.” It further appears that the parties kept no correct account of their transactions, the books and method of transacting the business being very imperfect. The report proceeds as follows: “ I have stated an account between each partner and the firm as best I have been able, the items on each side of each partner’s account being numbered. From said accounts I find that the plaintiff drew out of the partnership funds the [13] sum of §15,101.88, and that he has accounted for the sum of $15,588.73, leaviDg the firm indebted to him in the sum of $476.05; that the defendant lias drawn out of the partnership funds the sum of $11,187.74, and that he has accounted foi the sum of $8,404.72, leaving a balance due the firm from him of $2,783.02. “ The defendant testifies positively that he did not convert any of the partnership funds to his own use, but properly applied the same to the use of the firm, but at the same time is unable to give any detailed statement of his disbursements, having no account •whatever of many of the large credits given him in the statement herewith returned. “ The testimony being general, I hold it to be an insufficient accounting in this case.” 1. BABTSBEoountliwby partner. The sole question presented by appellant in this appeal is whether the defendant should be held liable for such of the partnership funds as came into his hands, and for r 1 . ’ which he could render no account, and as to which lie could but testily generally that he did not convert the same to his own use. It is contended that the question presented is the same as that determined in Davenport v. Schutt, 46 Iowa, 510. But we think the cases are quite different. In that case Davenport delivered to Schutt promissory notes, for the purpose of effecting loans by discounting the notes. Schutt, as the agent of Davenport, sold the notes and paid the proceeds to Davenport. It was held that there was no more obligation upon one party to keep bgoks of account than the other, and that Schutt was not liable merely because he could not show an itemized statement of the transactions between the parties, and that being a credible person, and having testified positively that he had paid and disposed of all sums realized by him from plaintiff’s notes as directed by the plaintiff, this, in the absence of some account or showing by Davenport that the proceeds of the notes were not accounted for, was a sufficient defense. In that case no confidence nor trust as to [14] tbe disposition of the proceeds of the notes was reposed in Sclmtt. He was to pay to Davenport, wbo could well have kept a correct account of all tbe notes deposited and payments made. Here tbe relation of tbe parties is quite different. Each checked out tbe funds of tbe partnership at will, upon bis own check, and it was tbe duty of each to account to tbe firm for what be drew out. If tbe defendant drew checks and obtained tbe money thereon its expenditure was a matter peculiarly within bis own knowledge. Tbe plaintiff was entitled to some showing more than a general statement that tbe proceeds of tbe checks were used for partnership purposes. “ All partners having any charge of tbe business of tbe firm are bound to keep constantly, regular, intelligible and accurate accounts of all tbe business, and to give all tbe partners at all times access to them and to tbe means of verifying them.” Parsons on Partnership, p. 527. Affirmed.