Schmidt v. Mertes

Winslow, C. J. The appellant does not dispute the general principle that equity is the proper forum in which to close up partnership concerns, settle the accounts between the partners, dispose of the property, and pay the partnership debts through the arm of a receiver, and divide the residuum between the partners; but his contention is in substance that under the allegations of the present complaint it appears that the partnership affairs have been settled by agreement of the parties, and that nothing remains save the payment of the amount which the defendant has agreed to pay the plaintiff for his share in the business. Were his premises correct it seems that the conclusion would follow that the remedy at law by action to recover the agreed balance would be adequate and exclusive. Where nothing is left to be done save the payment of an agreed balance there can be no necessity of a resort to equity, at least in the absence of insolvency on the part of the defendant. Edwards v. Remington, 51 Wis. 336, 8 N. W. 193; Gauger v. Pautz, 45 Wis. 449. That, however, is not the situation presented by the complaint. True, the parties agreed to dissolve, and have agreed upon ah inventory of assets and upon the amounts they have respectively drawn from the business, but here they part company.; They cannot agree as to their respective interests in [471] tbe residuum of assets. Now tbe agreement of dissolution as alleged in tbe complaint was in substance that after tbe accounting tbe interest of eacb partner should be ascertained and tbe defendant should pay to tbe plaintiff what bis interest amounted to (i. e. tbe interest thus ascertained), and -thereupon tbe defendant should become sole proprietor of tbe business and tbe plaintiff should step out. There was to be no dissolution nor relinquishment of plaintiff’s rights as a partner until this payment. True, tbe defendant took possession of tbe property with plaintiff’s consent, but only upon tbe promise that tbe settlement should be made. So we have a case of an agreement to dissolve in tbe future contingent upon an accounting and settlement which tbe parties are unable to complete on account of divergent views as to their respective interests, and, while tbe defendant has been placed in possession of tbe firm assets, it appears that the possession was surrendered upon tbe promise that tbe settlement should be made. In addition to this, it fairly appears from tbe complaint by inference that there are firm liabilities still unpaid and that tbe defendant has attempted to mortgage tbe partnership property as bis own. All these considerations differentiate tbe case very materially from a case where all that remains to be done is for one partner to pay tbe other an agreed balance. We conclude that tbe demurrer to the complaint was properly overruled. By the Court. — Order affirmed.