#### Marsteller v. Weaver’s Adm’x.

February, 1845,

Richmond.

(Absent Cabell, P. and Stanabd,* J.)

1. Statute of Limitations—Action against Partners.†— Upon a bill filed by a surviving partner against the administratrix of a deceased partner, the plea of the statute of limitations cannot be sustained, where it appears that there were good debts due to the firm outstanding within five years before the suit was brought.

*1672. Laches‡—Case at Bar.—The bill is filed nine years after the dissolution of the partnership, and after the death of the other partner. Held, that the circumstances of this case do not shew such *laches*on the part of the plaintiff as to deprive him of the ritfht to haye an account.

This was a bill filed in the superior court of law and chancery for the county of Fauquier, by Samuel A. Marsteller, against the administratrix of Samuel Weaver, for the settlement of a partnership account.

Tn 1824, Marsteller and Weaver formed a partnership for the purpose of conducting a mercantile establishment in the county of Prince William. The business was managed by Weaver, and was continued until 1826, when the partnership was dissolved. At the time of the dissolution of the partnership, there were numerous *outstanding debts due to the firm, and Weaver retained the books, and proceeded to collect the debts, some of which were collected as late as 1828. He died in 1831, when his widow qualified as his administratrix, and collected two or three small debts due to the firm, and in a few months afterwards transferred the books of the partnership to Marsteller. There had been no settlement of the partnership transactions during the lifetime of Weaver. After his death, an attempt was made by Marsteller and the agent of the administratrix to settle the accounts, which failed, and in 1835, this suit was instituted.

The bill stated that the partnership was by parol, and after setting out the terms, and the facts as above stated, alleged that Weaver had made collections which he had not entered on the books; that the plaintiff had made propositions to Weaver in his lifetime, for *a*settlement of the partnership accounts, which he had declined, and that he had endeavoured to obtain a settlement with the administratrix, which she had refused. He, therefore, prayed for a settlement of the accounts, and for the payment of the balance which might be found due to *him, out of the*assets of Weaver, in the hands of his administratrix.

The administratrix of Weaver pleaded the statute of limitations as a bar to the plaintiff’s claim, and also filed an answer, in which she insisted that the plaintiff ought not to have an account, because of his laches in prosecuting his claim. That it had been delayed until Weaver was dead, who was the only person beside the plaintiff who knew the terms of the partnership; that she was not acquainted with the affairs of the firm; that evidence had been lost, and, therefore, that the estate of her intestate would be subjected to gross injustice, if an account should be directed. She also filed with her answer, an account rendered by the plaintiff to Weaver, in his lifetime, which she insisted was a stated account, *and which being more than five years before the institution of the suit, was barred by the statute.

Witnesses were examined, who proved the facts as given above, and then the cause came on to be heard in Decembei 1836, when the court overruled the plea of the statute of limitations, but dismissed the bill on the ground that the plaintiff had unreasonably delayed to prosecute his claim. From this decree, Marsteller obtained an appeal to this court.

G. N. Johnson, for the appellee.

This case does not vary materially from Coalter v. Coalter, 1 Rob. R. 79. The suit was not brought for more than nine years after the dissolution of the partnership; and no excuse is stated in the bill for the delay. On the contrary, the bill states, that he had proposed a settlement of the accounts to Weaver, which he declined. This refusal of Weaver informed him that it was necessary to sue if he wished a settlement, and yet he delayed for years.

The plaintiff is chargeable with culpable negligence. In Atkinson v. Robinson, 9 Leigh 393, it was held, that every claimant should exhibit his claim so promptly that the account may be settled without injustice to the other party. To the same effect is Caruthers v. Trustees of Lexington, 12 Leigh 610; Carr v. Chapman, 5 Leigh 164, and Goode v. Hayes, 7 Leigh 452. Here is nine years delay without excuse; the death of Weaver, the only person beside Marsteller who knew any thing about these transactions, the administratrix knowing nothing of the accounts, whilst the books, according to the shewing in the bill, will not enable the parties to make a settlement; and this suit delayed until Marsteller has got possession of them, with all the papers belonging to the partnership, and in addition to all these, the partnership was by parol, and no person but Marsteller can say what the terms of the partnership were.

*Bouldin, for the appellant.

The case of Coalter v. Coalter, does not apply where there are open, current and unsettled accounts between the partners. In that case, there was nothing to shew that there was any outstanding claim of any kind for more than five years before the suit was brought. Here the whole partnership effects were in the hands of Weaver. There were mutual accounts between the parties, and at his death the books shew *168balances then due the firm, whilst it is proved he made collections in 1828, and that his administratrix made collections as late as 1831. Even at law there were such mutual accounts as, upon the principle decided in Catling v. Skoulding, 6 T. R. 189, would take the case out of the statute.

Although there does not appear to be any inflexible rule as to the time in which a claim for an account may be prosecuted, yet the usual period, in the absence of circumstances which may enlarge or limit it, seems to be about twenty years. In Brownell v. Brownell, 2 Bro. Ch. R. 62, the court refused to open an account which had been settled, after eleven years, but allowed the plaintiff to surcharge it.

Where the court is satisfied that the plaintiff has a claim to an account, it will not be refused, unless by his laches he has placed the defendant in a condition to suffer irremediable mischief, if the account should be ordered. It is not denied, in this case, that the plaintiff might have instituted his suit within five years from 1828, and this period extended beyond the death of Weaver: so that neither law nor equity required Marsteller to sue in his lifetime. The death of Weaver is not to be attributed as laches to the plaintiff. If the books of the partnership do not afford the materials for a fair adjustment of the accounts, that is the fault of Weaver, who kept them, and not of Marsteller, and surely the death of Weaver has not deprived his administratrix of any knowledge which the books would *give her. These difficulties arise out of the case, and- would have existed if the partnership had been dissolved the day before Weaver’s death. This is not a claim of. which she was kept in ignorance by the plaintiff; on the contrary, she is early informed of it; she expresses a desire that it should be settled; her agent attempts to settle it, and failing in that attempt, she must have expected this suit.

*

 Judge Stanabd had been counsel in the cause.

†

Statute of Limitations—Interpretation of.—it was said in Boggs v. Johnson, 26 W. Va. 827, that Va. Code 1860, sec. 5, ch. 149, has been repeatedly held to apply to suits in equity as well as actions at law, and the court cited, in support of this. statement. Coalter v. Coalter, 1 Rob. 79; *Marsteller v. Weaver, 1 Gratt. 391;*Foster v. Rison, 17 Gratt. 321; Sandy v. Randall, 20 W. Va. 244. See Va. Code 1887, sec. 2920, and W. Va. Code 1899, ch. 104, sec. 6. for the same statute as contained in the Va. Code of 1860 mentioned above.

Same—Same—Settlement of Partnership Accounts. —The court decided in Jordan v. Miller, 75 Va. 442, upon the authority of Coalter v. Coalter, 1 Rob. 79, which latter case it said was supported by *Marsteller v. Weaves, 1 Gratt. 391,*that in the case of a bill by a partner against his copartner for a settlement of *167the partnership accounts, the statute of limitations will not begin to run whilst there are debts due to and by the partnership.

Same—Same—Meaning of Word “Dealings.”—It was decided in Poster v. Rison. 17 Gratt. 334, that, the word “dealings,” used in the Code of 1849, ch. 149, sec. 5, is not confined to the active operation of the partnership during its continuance but embraces also any act done after its dissolution in winding it up. such as the collection or payment of outstanding debts due to or by the firm, and even good debts due to the firm, outstanding when the suit is brought. The court said further: “I therefore think that the cases of Coalter v. Coalter, and *Marsteller v. Weaver,*apply to the statute of limitations as it now stands in the Code of 1849, as much as they did to the statute as it stood in the Revised Code of 1819.”

The principal case Is cited In Foster v. Rison, 17 Gratt. 333 and 334.

‡

Laches.—See Poster v. Ris*on,*17 Gratt. 321, and *foot-note.*

BALDWIN, J.,

delivered the opinion of the court.

The court is of opinion that the appellant is not barred by the statute of limitations, nor by laches and lapse of time, from obtaining a settlement of the partnership and other accounts in the proceedings mentioned, and such relief as he may thereupon ghew himself entitled to; and, therefore, that said circuit court erred in dismissing the appellant’s bill, instead of directing such settlement to be had before a commissioner. The decree is therefore reversed, with costs, and the cause remanded to be further proceeded in, according to the principles above declared.