Logan v. Trayser

Lyokt, J. 1. The defendants moved for a nonsuit on the ground that the case involves the necessity of an accounting between the partners in the stave company, and that no action at law can be maintained against them to recover the proportion of the indebtedness of the company chargeable to them, until an accounting shall have been had in equity and such proportion thereby ascertained. The motion was denied, and such denial is assigned as error. ¥e think the ruling correct. Such accounting was had in the action against the Dixon heirs, and the amount of the deficiency which, as between themselves, each partner ought to pay, was there ascertained and adjudged. The defendants were parties to that action, and, under a familiar rule of law, are bound by the adjudication. In their answer the defendants deny that they consented to be made parties to the Dixon suit, and allege that it was commenced without them advice or consent, and claim that for those reasons they are not bound by the judgment [582] therein. They do not deny they knew the suit was commenced and prosecuted to judgment in their names as plaintiffs, and it does not appear that they ever made any objection thereto. They must be held bound by the judgment. When the judgment was rendered in the Dixon Case, the business affairs of the stave company had been closed, and no change afterwards occurred in the relations of the surviving partners to each other, or in their rights or liabilities in respect to each other. It is plain therefore that there was no necessity for a further accounting in equity, between the surviving partners, of the affairs of the company. Each partner was a surety for the others for the payment of their respective shares of the deficiency thus ascertained, and if one of them paid the share of another, he may maintain an action at law against such other for money paid for his use and benefit. This is such an action. 2. It was alleged in the Dixon suit, and so adjudged, that the plaintiffs therein had paid all the indebtedness of the stave company. Inasmuch as the present defendants were plaintiffs in that suit it is claimed this is equivalent to an adjudication that they had paid their due proportion of such indebtedness, and that the plaintiffs are concluded thereby. Probably the proportion of the indebtedness of the stave company paid by each surviving partner might have been determined in the Dixon suit, but it was not. It was only found that the plaintiffs, collectively had paid such indebtedness. Had these defendants asked the court to determine what sum each partner had paid thereon, and to settle the equities between the surviving partners, doubtless the court would have done so. But they made no such request, and were satisfied with the judgment as rendered. Under these circumstances it would be most unjust to force the construction contended for of the judgment in that suit, and thus relieve the defendants from the payment of money which the plaintiffs —their sureties —have paid for them, [583] and which, the defendants admit they have not repaid. We conclude the judgment in the former suit is not a bar to this action. 3. When the accounting was had in the Dixon suit, the surviving partners had on hand a quantity of the machinery of the stave company, which they had removed to Chippewa county. In the accounting in that action the plaintiffs therein were charged with the value of such machinery, fixed at $1,800. It is not claimed that it was of any greater value. The defendants claim, however, that they had nothing to do with the removal of the machinery, and that they should be allowed in this action, their proper share of such value, being $300. This claim cannot be allowed. The value of the machinery has been applied to the payment of the indebtedness of the stave company, and reduces the recovery in this action just $300. The removal of it to Chippewa county without defendants’ consent is of no significance. The matter stands precisely as it would have stood had the surviving partners, or any of them, sold the machinery while it was at New London for $1,800, and with the proceeds of the sale canceled to that amount the indebtedness of the stave company. In either case the defendants realized their share of such proceeds by a corresponding reduction of the indebtedness of the stave company for which they were liable. The law being with the plaintiffs, and there being no controversy on the facts, the court properly directed a verdict for the plaintiffs for the sum they had paid for the defendants, and interest thereon. By the Gourt.— The judgment of the circuit court is affirmed.