Bauduc's Syndics v. Laurent

Martin, delivered the opinion of the court. The petition shows the insolvent and defendant were joint owners of the steam-boat Florida, Which was built and navigated by the defendant, who acted as clerk and master of her till some time in 1829, when she was sold at public auction for $ 11,000, which were deposited in the Bank of Louisiana: that the insolvent had furnished the defendant with all the money necessary for the building of the boat, and the defendant received all the freights and passage money carried during one hundred and six voyages, performed-by the boat, while she was their joint property; and the insolvent received several sums of money, for account of the defendant, and made advances and disbursement,s''according to accounts annexed to the petition, whereby a balance is due him by the defendant of $ 97,654, 90, subject to a deduction of such sums as the defendant may prove he spent in building or navigating the boat. Judgment is prayed for accordingly, and for one half of the money deposited as aforesaid. The defendant pleaded the general issue; but admitted he built and navigated the boat for the joint account of himself and the insolvent; that she was sold and the proceeds deposited, as stated in the petition. That, in 1824, they both entered into a partnership, for continuing the navigation of a steam-boat, and purchased the steam-boat Packet, which was navigated till the spring of 1886, when she was sold, and the, defendant went on his own and the insolvent’s account to Pittsburg, where he built the steam-boat Florida, which he brought to New-Orleans, and afterwards navigated, for their joint account, on the Mississippi, till the year 1829, when she was sold as stated in the petition. The answer concluded by an allegation that there was a [451] .balance of about § 26,000 due by the insolvent to the defendant. A settlement of accounts for both boats was prayed and judgment accordingly. nersMp°are settled °ne partner has no action against the other andof course does , Until the acThe case was submitted to a jury who found a verdict for the defendant. By the judgment the defendant was ordered to be placed on the tableau of distribution, for a balance of $ 662 75, as a chirographary creditor, and as a privileged one for the costs, and that one half of the money deposited in bank be paid to him. From this judgment, the syndics appealed, after an unsuccessful attempt to obtain a new trial. Two principal points have been presented to us. 1. A plea of prescription to the whole claim of the defendant, for his wages, as clerk and master of the boat. 2. That the jury erred in allowing credit to the defendant for a large amount of debts due to the boat, and alleged to be uncollected, without any evidence of their existence or of any diligence of the defendant in attempting to collect them. On the first point, there cannot be any doubt that the plea was not admissible. In Drumgoole vs. Gardner et al., 10, Martin, 135, we held that a partner has no action against . another (except to make him accoürit) until á filial settlerhent takes place, and then for the balance that appears due'. In Ward vs. Brandt et al., 11, Martin, 333, we said a partner has no claim against the other, till all claims against the partnership be discharged; and, in Faurie et al. vs. Millaudon, 3, Martin,, N. S. 178, we recognised the principle that a partner is not accountable for any transaction, nor any number of transactions, but for balance only, which after a general settlement of accounts, may appear due. It is clear, therefore, as it is admitted, the parties were partners, and the accounts of the partnership were never settled; the defendant could never have claimed the half of [452] his wages, which the insolvent now bound for: Contra non valentem agere nori cur ret prescriptio. In complicated vernTyears5 standing it is difficult to ascertain on what grounds the ver^ict°Unandth<in ncdb^disturbed^ On the second point, the counsel of the syndics has relied on the new code, 2833. Curia Peilipica, 1,3, N. 18, p. 274, Partida 5, 10, 7, id. 14,22. and Lopez’s Commentary on the last law, Pothier mandat, 47. This part of the case has appeared to us to turn less on a question of law than on that 0f fact. It was pressed on the district judge on the motion r J °. for a new trial. Upon complicated transactions of several years standing, it is difficult to ascertain the grounds taken by a jury in the process on which they formed their verdict. The parties had the benefit of an able and respectable jury of merchants, and the judge before whom the case was tried has expressed his satisfaction of their decision, and we see no reason to disturb it. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed with costs.