McMahill v. Jenkins

Bland, P. J. This was a bill in equity for an accounting and settlement of partnership affairs. The partnership had been dissolved by mutual consent before the institution of the suit. The answer was an admission of the former existence of the partnership and dissolution, but averred a full and final settlement of its affairs between plaintiff and defendant. The defendant took the affirmative to prove the issue of settlement between the partners. The court, after hearing the evidence, found the issue for the defendant, and we are asked to review this finding. Partnership: bill por accounting and settlement: pleading. This may be done by this court, in this kind of a case (an equity one). We have carefully gone through and examined the evidence as presented in the bill of exceptions, and from this, it clearly appears that a full and fair settlement was made, agreed to, and the statement of settlement signed by the defendant. The evidence strongly preponderates on this issue in favor of the defendant, and we find no fault with the finding of the chancellor in his favor. The plaintiff, by his reply, tacitly admits the settlement, but seeks to avoid it by alleging his sickness and inability to examine the partnership books, at the time of the settlement. He does not allege fraud in the settlement, but avers that omissions were made of charges that should have been made against the defendant, and a failure on the part of the defendant to render just and true amounts of the part [281] nership property and funds. Plaintiff can not amend his petition by his reply. The affirmative relief he desired should have been pleaded in his petition. He should have pleaded the settlement in his petition, and asked that it be surcharged and falsified upon some equitable grounds. He can not engraft this additional equity upon his bill by a reply, under any recognized rules of pleading. Judgment affirmed. All concur.