#### Blackiston’s Appeal.

1. Freck and Blackiston, as partners, field a lease of a colliery; a railroad company located its road on tfie leased property. Freck bought Blackiston’s interest in the colliery, . . . and all property real and personal therewith connected, and the partnership was dissolved. Afterwards, the company paid to Freck $10,000 for the damages from the location of their road, *held,*that Blackiston was entitled, as partner, to his share of that sum.

2. The claim for damages was a personal debt due the partners, and no part of the colliery.

3. Settlement in this case of coal partnership ; one of partners being partner in other coal firms, selling on commission, part of sales being those of first firm. ,

4. Schuylkill Nav. Co. *v.*Thoburn,’7 W. & S., 411; Schuylkill and Sus. Nav. Co. *v.*Decker, 2 Watts, 343; Zimmerman *v.*Union Can. Co., 1 W. *&*S., 346,' followed.

March 2d, 1876.

Before Sharswood,' Mercur, Gordon, Paxson, and Woodward, JJ.

Appeal of J. R. Blackiston from the decree at Nisi Prius, of January:Term, 1868, No. 67. In Equity.

The bill in this case was by Joseph M. Freck against John R. Blackiston. It set out:

1. A partnership entered into August 18th, 1862, between plaintiff and defendant, for mining, and dealing in the coal mined. The articles of partnership recited a lease to the parties from the Locust Mountain Coal and Iron Company to mine and carry away coal from the Centraba or Centreville basin, in Columbia County, for ten years from January 1st, 1862, and that the parties desired to form a partnership for the working of the colliery and selling the coal. The terms of the partnership were :

I. The partnership to be restricted to working the colliery and selling its product, and the management of the business connected therewith ;" and not to apply to other business of Blackiston.

II. Blackiston to advance money for the necessary improvements, the cost being estimated at $20,000, to be repaid from the business as soon as could be reasonably done; if, at the end of the lease, the advance With its interest should *340not have been entirely repaid, tbe deficiency to be equally borne by tbe partners. Freck’s portion of the deficiency to be secured by bond and mortgage to blackiston.

III. The partnership to terminate at the end of the lease, if not sooner terminated for other causes.

IV. Ereck to devote his whole time and services to the purposes of the partnership, and not to engage in any other business; Blackiston might attend to business not appertaining to the firm. Freck’s duty to be to superintend the working of the colliery, Blackiston to sell its product.

V. Freck to draw from the firm, from time to time, such sum, not exceeding $1000 per annum, as should be necessary for his support; interest to be allowed on all advances by either partner, and interest to be charged to each partner on all sums drawn from the firm.

VI. Neither to use the firm name in any business not pertaining to the firm ; if so done to be a cause of dissolution; the firm name not to be used for the accommodation, etc., of other parties.

VII. To be subject to all the rights, duties, and liabilities of partnerships.

2. The partnership was dissolved m the month of February or March, 1866 ; that in the adjustment of the mutual interests of the parties Freck became the purchaser of Blackiston’s interest in the mining “ lease, breaker, machinery, etc., tools, and appliances, of whatsoever nature and kind, which had belonged to .and were employed by the firm in working said mine,” for $80,000, of which $40,000 were paid in cash, the remainder to be paid iia two instalments, of which $20,000, with its interest, $600, was paid by Freck September 1st, 1866.

3. At the dissolution, the books and papers of all kinds covering the firm’s business for four yeai-s remained in the hands of Blackiston, who was authorized to close the business of the firm.

5. Blackiston proceeded to wind up the business of the firm, and as plaintiff believed had completed the settlement, but the accounts between Freck and Blackiston growing out of their partnership relations were unadjusted, and Blackiston, on request, has refused to settle the account, and denied Freck’s right to an account.

The prayers were for an account; that the balance found to be due to Freck be decreed to be paid to him, and for further relief.

The defendant as to so much of the bill as prayed for an account, excepting certain specific items (mentioned thereafter), pleaded, that after the dissolution the partners *341accounted together respecting all their dealings in relation to the partnership, including the unpaid balance of the purchase-money of the leasehold, fixtures, etc., and stated an account in writing, excluding expressly therefrom two unsettled claims (mentioned in the 'answer accompanying the plea), and by the stated account there was found to be due Blackiston a balance of $14,678.98, which, including interest to April 4th, 1867, the date of the settlement, was paid to Blackiston, which settlement, payment, etc., the defendant pleaded in bar to the relief, etc., sought by the bill.

The defendant also answered:

1. He admitted' the bill and articles.

2. By an agreement of February 21st, 1866, provision was made for the dissolution of the firm and settlement of the accounts, which became absolute by the acceptance of its conditions, and the purchase of Blackiston’s interest — Freck paid the $40,000 and $20,000 — as averred.

The conditions in the agreement were:

I. Blackiston to name a price for “ his interest in the Centralia colliery, and in all the material, property, fixtures, machinery, tools and engines thereto belonging, and all property, real or personal, therewith connected,” Freck to buy them at that price ; if he refused, Blackiston to have the right to buy the interest of Freck at that price.

II. The payments to be one-half cash, the remainder in equal payments in six and twelve months, with interest.

III. The. purchaser to give the seller a bond of indemnity in $30,000 against liability on the covenants in the lease from the Locust Mountain Company.

IV. Possession to be given on the succeeding first day of March, all accounts of the working expenses of the colliery to be settled to that date; if Blackiston purchased, Freck to have sixty days from March 1st to remove his family and goods from the house occupied by him.

3. The firm’s books were kept at the colliery and were in possession of Freck; no separate firm books were kept in Philadelphia, but an account was kept there of sales of the product of the colliery and charges, and a statement of all transactions of the firm in Philadelphia was rendered to Freck monthly at the colliery,, and entered by him in the firm books kep°t there, and settlements made from time to time on the basis of these settlements. Blackiston had books in which are entries from January 1st, 1865 to March 28th, 1866 ; these were kept as memoranda to enable him to send statements to Freck to make entries in the firm books at the colliery.

5. By agreement of dissolution made February 28th, 1866, *342both parties were authorized to liquidate the accounts of the firm ; they did so, each attending to the business .where they respectively resided; the accounts were sent to Freck, under whose supervision the firm books were kept;’he sent the balance-sheet from which the final settlement, etc., mentioned in the plea were made. It was dated August 13th, 1866; every item in it was embraced in the settlement except two, which were described in the balance-sheet as follows :

“ Investment account, .... $2800

J. 0. Yan Camp, . .' . ... 87.72

These items had never been accounted for between the ■partners. There was another item of firm property not in the books or balance-sheet on which the settlement was made, viz., a claim against the Lehigh and Mahanoy Railroad Company for damages for locating their road on the crop of the vein. Blackiston was willing to account for these items, but denied that he had ever received anything on account of them, and alleged that Freck had received them.or part of them.

Defendant denied that he had refused a settlement as to these items, or that he had ever been so requested, but had refused to open and re-settle accounts which had long since been settled.

The plaintiff then amended his bill-by adding as follows :

6. The monthly statements sent by Blackiston to Freck were “ false, erroneous and deceptive,” as Freck had ascertained ; three items were specified.

I. Blackiston, instead of having made the sales personally caused sales of large amounts of the coal of the firm to be made by Blackiston, Graeff & Co., of which Blackiston was the head, and charged Freck & Co. commissions amounting to, $7000 and upwards.

II. , A large amount of coal consigned to Blackiston between May, 1863, and February, 1865, was transferred by Blackiston to his own firm of Blackiston, Graeff & Co. for less than the market price, and the account safes returned as if they were actual sales in the market; the aggregate difference between the prices returned and the market prices was $30,321.31.

ill. Blackiston was interested, with others, Freck not being one, in a contract for coal to the United States Government at $4.98 per ton, arid applied 15,500 tons of the coal shipped to him by Freck on this contract, taking the coal for this purpose at prices below the amount allowed by the government and so returning the sales, making a difference *343of $11,000 between the amount realized by Mm, and that returned.

Freck had at no time possession of the books exhibiting the transactions of Blackiston in Philadelphia,'but only their temporary use when he was in Philadelphia ; they had always remained with Blackiston, who assumed the duty of winding up the business there; there had been no mutual settlement of accounts, and no general or final accounting of Blackiston and Freck; or any final settlement of any kind. In making payment of the last instalment of Freck’s bond and mortgage given for the colliery, he was allowed credit for an amount Blackiston, in his monthly current account, stated to be to Freck’s credit, but there was no review of that account, nor was the balance examined into or vouched, or shown or'admitted to be correct. Freck at that time had no knowledge of the detail of the accounts. The defendant answered the amendments as follows:

1. He denied the allegations of plaintiff as to there having been no mutual settlement, nor final settlement, nor review of the account, nor examination of the balance, nor review of the account, nor that he had knowledge of the detail of the accounts.

Freck attended to the business at the collierj', where the books were kept; coal was sold at the mines, Port Richmond, Philadelphia, New York and elsewhere. Blackiston returned the sales with which he had anything to do monthly in accounts of sales; accounts current also were rendered; they showed the sales, rates, charges and net amount received by Blackiston, Graeff & Co., or Blackiston, after charging remittances to Ifreck, and showed every fact in relation to the transaction.

These accounts were kept under Freck’s supervision in the books at the colliery; from these he drew off and sent Blackiston balance-sheets, which exhibited the amount Blackiston, or Blackiston, Graeff & Co., were creditors of Freck & Co. When he sold his interest in the colliery, the firm business ceased,-nothing remaining but to pay outstanding liabilities and the debts to collect. Besides the claim for damages from the railroad company, the- items excepted as stated in the answer appear in the balance-sheet of August 13th, 1866, which is as follows :

Dr.

J. B. Blackiston & Co. . 10,738-35

Investment account, . . 2,800

J. C. Van Camp, . . . 87.72

13,626.07

Cr.

J. M. Freck,..... 7,758.34

J. B. Blackiston, . . t . 5,867.73

13,626.07

*344The balance-sheet was the result of accounts sent to Freck from time to time of the same matters for which an account was sought by the bill, stated in detail. Freck accepted the balance-sheets without objection. The account books in Philadelphia were always open to him, as the account books at the colliery were open to Blackiston. Freck and Blackiston settled the whole of the business except the uncollected items; debiting Freck with the price of the colliery, and crediting him with the balance appearing to be due him on his own balance-sheet out of the whole partnership business ; on this settlement Blackiston got his money. The account on which they settled was stated thus :

“Settlement of the mortgage held by John B. Blackiston, executed by Joseph M. Freck, to secure the purchase-money of colliery:

Balance of principal of mortgage, . ' . . §20,000.00

Interest from March 1st, 1866 to April 4th, 1867, . 1,313.33

—--— $21,313.33

Balance due Joseph M. Freck as per balance-sheet

August 13th, 1866,...... 7,758.34

Less half investment account uncollected, $1,400.00

Half of J. O. Van Camp’s bill,. , . 43.86

--1,443.86

6,314.48

Interest from June 1st, 1866 to April 4th, 1867, . 319.92

---$6,634.40

$14,678.93

Freck paid this balance to Blackiston and took his receipt, which, it was then agreed, settled everything; Freck undertaking, when he collected the loan, to pay Blackiston his half, which he had not done although he had received the money.

As to the charge for commissions, Blackiston answers:

At the time of forming the partnership with Freck he had one-third interest in a firm as a commission merchant; in the firm of J. M. Freck & Co. he had one half interest ; if he had sold the coal himself as J. M. Freck & Co., he must have incurred for that firm the expense of an office, clerks, an office in New York, etc., and must have sold at the risk of Freck & Co. Instead, a portion of the sales were made by Blackiston, Graeff & Co., and that firm charged a commission which included a guaranty of sales, the gross amount of which was $130,549.32 for 19,094 tons, during the three years whilst the business continued ; the commissions were $7180.24, being 5J per cent., including selling, guaranteeing and remitting. Most of the coal was sold in New York'at an expense of ten cents per ten, exclusive of guaranty ; and half of the charge by Blackiston, Graeff & o. being a guaranty commission, and Freck & Co. thus *345avoiding all losses, the actual expense incurred by that firm in thus selling, deducting the guaranty, was but $3916.15, covering very little more than the actual expenses of Blackiston & Co. The mere expense of selling would' have cost Freck *&*Co. $16,000, had Blaekiston sold the coal as Freck claimed he should have done.

Freck knew that Blaekiston intended so to act and acquiesced in it, and his accounts current were made up on that basis.

As to the charge that Blaekiston transferred coal consigned to him to Blaekiston & Co. at prices less than the market prices, he denied, and further averred that the coal was delivered directly from the-colliery to Blaekiston *&*Co. All the coal of Freck & Co. that they could sell -was sold deliverable at the mines, and then shipped directly to the purchasers. Freck sent the surplus to Blaekiston & Co. at Richmond, and Freck & Co. were credited for it at the highest market rate as purchasers, not consignees for sale; Freck acquiesced and received the money.

As to the sales to the government, Blaekiston answered : In 1864 or 1865 contracts were made by RepplieH& Wright to supply the government with coal at a fixed price ; Blackiston & Co. united in filling the contract, having an interest of one-sixt-h, Blackiston’s alone being one-eighteenth. Repplier & Wright, in filling the contract, bought coal in open market, amongst others from Freck & Co., who sent the coal directly to Repplier & Wright, and on their account, ITreck knowing that Blaekiston & Co. were interested in them; the sales were stated to Freck in the account sales sent to him with the price; he settled on this basis without objection. The bill did not pretend that the prices were not full market prices, and more than market prices could not be-demanded.

*0. H. T.*Gollis, was appointed Examiner and Master.

He reported:

At the outset it, is necessary to dispose of the ground taken by the defendant, that the plaintiff is estopped from requiring an account.

1. By the articles of dissolution and the purchase under-it by J. M. Freck.

2. By the rendering of the balance-sheet of August 13th,. 1866; and,

3. By the payment to Blaekiston by Freck of $14,678.93 on April 11th, 1867, and Blackiston’s receipt therefor.

The articles of dissolution provide only for the sale of the partnership property, and are silent as to any claim one-*346partner may have against the other on account of moneys received by either.

The balance-sheet was made up, it is true, by Erect from the books at the colliery, the entries in which were, however, based upon memoranda furnished by Blackiston, and the receipt was for a balance due to complete the purchase-money for the colliery, *plus*the amount due as per balance-sheet of August 18th, 1866, which, as before stated, was made up from memoranda furnished from time to time by Blackiston.

Neither the articles of dissolution, nor the balance-sheet, nor the receipt, can, therefore, be permitted to operate as a waiver of plaintiff’s right to an account of defendant’s transactions “ appertaining to the business of the firm.”

The purpose of this reference is not to state an account between the parties, but to ascertain and report whether an account *should*be stated, and upon what basis, and as to what particular subjects.

It is alleged that the defendant is required to account to the plaintiff for a share of the profit he derived from the commissions charged by the firm of Clackiston, Graeff & Co. for selling the coal from the mine of J. M. Freck & Co , and to this the defendant answers, that this was the cheapest .and best way of disposing of it, and that Freck acquiesced therein.

The evidence is conclusive, that it was by far the cheapest way to dispose of the coal, and saved to the firm of J. M. Freck & Co. a considerable amount of money, which otherwise would have been expended in the employment of clerks .and maintenance of an office in Philadelphia for the transaction of their business. Yet it was Mr. Blackiston’s duty to do just what he did, viz., save the firm of J. M. Freck & Co. the'expense above mentioned, and if, in doing so, he obtained a profit or compensation in addition to the loss from which he protected his firm, he was in error in not admitting his copartner to a share in that profit or compensation. I am, therefore, of opinion, and so report, that Mr. Freck is entitled to an account of the commissions paid to Blackiston, Graeff & Co. on sales of coal from the Centralia colliery, and is entitled to his pro rata share of Mr. Blackiston’s participation .therein, after first deducting Mr. Blackiston’s share of the expenses incurred by Blackiston, Graeff & Co. in selling the coal.

It is further charged, that a large portion of the product •of the Centralia colliery was purchased at Richmond by Blackiston, Graeff & Co., “ at prices considerably less than the current market price of the day, and account sales of *347such transfers returned as if the same were actual sales .in the market on such days.”

And to sustain this averment, witnesses were called to show that the coal could have been .sold on “ the line,” *i. e.,*at points between the place of shipment and Port Richmond, in which ease it is admitted a higher price could have been obtained.

A careful review of the testimony, however, and especially of the correspondence which passed between the parties, makes it very clear, that all the coal which could have been, *was*sold along the line, it being both Blackiston and Freck’s interest so to dispose of it, and that the reason a larger amount was not sold was owing to circumstances over which neither of the parties had control, viz., the poor condition of the coal at certain periods, the insufficient supply of cars for its transportation, and the impossibility of finding a market on the line for all the product of any one colliery.

It was the custom, sanctioned by the acquiescence of Mr. Freck, and iu fact in obedience to his own directions, to send all surplus coal to Port Richmond, and at that point, it is. true, a large portion of it *toas*sold to Blackiston, Graeff & Co. '

The evidence does not sustain the allegation that these sales were at less than the current market 'rates. Mr. John E. Graeff swears, “We never-paid less, and in some, cases we paid more than we paid other parties.” ' And this statement is borne out by the returns of purchases made by Blackiston, Graeff *&*Co., as compared with purchases from other collieries.

The plaintiff, however, goes further, and charges that as Mr. Blackiston was a member of the firm of Blackiston, Graeff & Co., while he was a member of J. M. Freck & Co., he could not appropriate to himself any profit arising from the sale of coal by Blackiston, Graeff &Co., which they had purchased from J. M. Freck & Co., because in doing so, he retained an interest adverse to that of his partner Freck. As an abstract proposition, of course, this position is correct ; but there may be circumstances that render such a transaction perfectly proper, and estop the other partner from finding fault. . . .

It is contended by plaintiff’s counsel, who pressed this claim upon their argument, though they omittéd it from their pleadings, that “ no partner can derive, directly or indirectly, a benefit to himself out of partnership business in which his copartner does not fully share ratably to his interest in the firm, and if such a benefit has been derived, *348the copartner cannot be deprived of his right to claim his portion of it, except by proving that with full and complete knowledge of every fact connected with it, he thoughtfully and intelligently waived any claim to participation, either by such acts of acquiescence as should equitably prevent him from claiming, or by a release and settlement deliberately made; and the burden of proving such acquiescence, or such release, is on the partner who has made these illegitimate profits, and claims to be relieved from the duty of accounting for them; ” and for the purposes of this cause, it may be admitted that such is the rule which must govern the conduct of partners toward each other. It is equally true, however, that a moral obligation rests upon a partner to object promptly to any transaction or manner of doing business which affects his rights, and if he.leads his partner to believe by his daily actions that he sanctions and acquiesces in the manner of doing business, whereas, in truth, he intends, *when it suits*him, to object, he practices a deception upon his copartner which in a court of equity should not be countenanced. The moral obligation to demur is as great as that to account.

The evidence in this cause requires me to report as a fact, that Mr. Freck did sanction, authorize, and acquiesce in the purchase of, coal by Blackiston, Graeff *&*Co., and as a member of the firm of J. M. Freck & Co., knowingly and intentionally parted with all property therein, or right to follow the profits derived therefrom, while under the control of Blackiston, Graeff *&*Co. Blackiston furnished all the capital to fit up the colliery, and his firm of Blackiston, Graeff & Co. were the best customers of the colliery, taking all the coal sent to .them by Freck. Thus the colliery furnished Blackiston, Graeff & Co. with an additional supply of coal, and Blackiston, Graeff *& Go.*furnished the colliery with an additional customer, to their mutual advantage. During the whole existence of the firm of J. M. Freck & Co. no suggestion was ever made by Freck that he was entitled to a share in the profits of Blackiston, Graeff *&*Co., not even when he commenced this suit; nor until his counsel presented their claims for items of account to the Master.

' Is it fair that at this late day, Mr. Blackiston shall be required to account for profits legitimately made in the sale of. property purchased from his copartner (Freck), with his full knowledge, acquiescence and consent, there having been nbthing secret, surreptitious or suspicious about the transaction ? I think not, and so report.

3. As to the government contracts.

In the year 1864 a contract was entered into between *349Messrs. J. G. & G. S. Repplier and the government, under the terms of which the former agreed to supply to the latter a large amount of coal at a stipulated price; and for this purpose they associated with them several leading coal houses, among whom were Messrs. Blackiston, Graeff & Co. In the following year Joseph C. Wright entered into a similar contract, and also associated with him others, among whom were Blackiston, Graeff *á*Co. The associates in both these contracts contributed their pro rata share of the coal shipped to the contracting party, and also their pro rata share of the money required to purchase additional coal in the open market. A large proportion of the coal contributed by Blackiston, Graeff & Co. in each case was obtained from the Centralia colliery, being mined by J. M. Freck & Co., under the terms of their articles of copartnership of August 18th, 1862. Neither J. M. Freck, nor the firm of J. M. Freck & Co., as such, were parties to these contracts.

For all coal thus supplied by J. M. Freck *&*Co., to fill the government contracts, they received on the Repplier contract the full government price, and on the Wright contract 25 cents per ton above the market price, and were so credited from time to time upon the-accounts rendered by Blackiston to Freck. It is now claimed by Freck that his firm is entitled not only to be thus credited, but that as Blakiston received an additional profit on the amount realized from the government, he (Freck) is also entitled to his pro rata share thereof.

There is no evidence in the cause to warrant the Master in reporting that it was understood between the parties (Freck and Blackiston) that this venture of Blackiston was to be shared in by Freck, the Master being very clearly of opinion that Blackiston had no such intention beyond obtaining from the “association” a good price for the Centraba coal; but Mr. Freck swears positively, and it is not denied, that he early made demand for his share of the"profits.

The case of Bast’s Appeal, 20 P. F. Smith, 301, arose out of a state of facts very similar to those existing here. Pearson was a member of the firm of Davis Pearson & Co., aud in his own name and with his own capital associated himself -with Joseph C. Wright in this very government contract, the profits arising from which he did not share with his co-partners. After his death a bill was filed against his executors, praying for an account of these profits, and though the Master reported that the evidence warranted the conclusion that Pearson’s venture was exclusively his own, made with full knowledge of his partners, who during his lifetime had made no demand for a share of the profits, yet the Court *350directed that an account be stated between the parties, Chief Justice Thompson using this language: “In the absence of special provisions each partner is in a fiduciary relation to his copartners, and must devote all his energies for the promotion of the firm exclusively, and account for all moneys received by him in and through its’ legitimate business. These being the duties .and obligations of every member of a partnership, he who claims exemption from them must show that it exists, either in the terms of the organization or by the assent of all his copartners. It must, therefore, be clear that the partners have yielded their right to the labor of one of their fellows, or of profits earned in the business, before they can be estopped from claiming them.” .

Applying this rule to the ease before us it is clear that so far as any profits' realized from the sale of coal of the Centraba colliery is concerned, the duty of which sale specially devolved upon Mr. Blackiston, by the terms of the agreement of copartnership, the firm of J. M. Ereck & Co. is entitled to them.

This applies only to the Wright contract. The profits arising from the Repplier contract were made upon coal purchased by the association in the market, and did not include coal contributed by J. M. Ereck & Co., that having been paid for at the government contract price. I am therefore of opinion that the plaintiff is entitled to an account of profits obtained by John R. Blackiston in the Joseph C. Wright contract, and to a participation therein, in proportion to the amount of coal contributed by the firm of J. M. Ereck & Co.

Since the dissolution the sum of $10,000 has been paid to Mr. Ereck by* the Lehigh Yalley Railroad Company for damages sustained by the colliery by reason of the firm’s inability to mine coal from under that portion of their land used as a roadbed for said railroad, and Mr. Blackiston claims his pro rata share thereof, upon the ground that the damage was inflicted during the continuance of the firm, and the loss accrued, the moment the pick of the miner was stopped. When property is taken by a railroad or canal company .the damages become a personal debt of the company, due to the owner at the time of taking. The title passes to the railroad; soliere — when the Lehigh Yalley Railroad Company entered and located they acquired the title to the coal necessary for the support of the roadway ; the damages became a debt of the company to the firm. They did not pass by the sale of the colliery, as it was a mere personal debt disconnected from the land: Zimmerman *v.*The Union Canal Company, 1 W. & S., 346; Sch. andSusq. Nav. Co. *v.*Becker, *3512 Watts, 343. No evidence was offered to show whether this did or did not affect the gross product of the colliery; but .on the principles above stated I report that Mr. Blaekiston is entitled to his share thereof.

The Master reported further that it be decreed, that an account be stated between the parties:

1. As to John It. Blackiston’s proportion of the eommis-. sions charged by the firm of Blackiston, Graeif & Co. for selling coal from the Centralia colliery.

2. As to John R. Blackiston’s share of profits in the government contract made by Joseph C. Wright.

3. As to the damages paid by the Lehigh Valley Railroad Company.

4. As to the $2800 received from Columbia County on account of money advanced for county purposes.

Both parties filed exceptions to the report.

The plaintiff’s were:

4. Not allowing an account of the sales of coal sent from Centralia colliery to Blackiston, Graeff & Co. at the prices they sold the coal.

8. Reporting that the plaintiff was not entitled to an account of the profits received by Blackiston on the Repplier contract.

The plaintiff-did not except to the fourth item of the decree recommended by the Master.

11. Reporting that the profits arising from the Repplier contract were made upon coal purchased by the association, not including the coal contributed by J. M. Freck & Co.

12. Not reporting that J. M. Freck & Co. is entitled to an account of the profits obtained by J. R. Blackiston on the Repplier contract in proportion-to the amount of coal contributed by J. M. Freck & Co.

13. Reporting that the claim for damages against the Le-high Valley Railroad Company did not pass to J. M. Freck by the sale of J. R. Blackiston’s interest in the partnership to J. M. Freck.

14. Reporting that J. R. Blackiston is entitled to an account of the damages paid by the Lehigh Valley Railroad to j. M. Freck.

' The defendant’s exceptions were:

1. Directing an account of the share of the commissions received by defendant from- Blackiston, Graeff & Co. for doing the business of J. M. Freck'& Co.

2. Reporting that there should be an account taken of profits of coal to fill the Wright government contract.

On the 20th of September, 1874, the Court sustained the-defendant’s exceptions, and the plaintiff’s 14th exception: *352overruled the others, and directed the bill to he dismissed' with costs.

Both parties appealed to the Supreme Court.

Blackiston’s appeal was in the following terms:

“ The defendant, John R. Blackiston, appeals from so much of the decree as dismissed the bill, and the defendant’s claim to an account set up by his answer as respects the sum of ten thousand dollars received by the plaintiff from the Lehigh Valley Railroad Company on the 20th of August, 1869 ; and also the sum of twenty-eight hundred dollaré received by the plaintiff from Columbia County, or the collector of Cunningham township, bounty taxes, on the 4th of February, 1867, and 25th August, 1867.”

The errors assigned were:

1. The Court erred in dismissing the bill, and in not directing an account of the item received from the commissioners of Columbia County by John M. Freck, being a return loan of the money of the firm, and which was excepted from the settlement between the partners, and received by Freck after such settlement.

2. The Court erred in dismissing the bill, and in not directing an account of the sum of money received by John M. Freck from the Lehigh Valley Railroad Company, being damages awarded for injury done to the colliery,.which was partnership property. This sum was not included in the account settled by the partners, and was received by Freck after the settlement.

*R. G'. MeMurtrie*(with whom was *J. W. Paul),*for appellant.

*T. Guyler*(with whom was *P. 0. Parry)*for appellee.

Mr. Justice Woodward

delivered the opinion of the Court, March 13th, 1876.

This cause was referred to a Master to ascertain whether an account should be stated between the parties, and if so, to determine on what basis it should rest, and to what subjects it should extend. The Master reported that an account should be stated as to four items:

“ 1. As to John R. Blackiston’s proportion of the commissions charged by the firm of Blackiston, Graeff & Co., for selling coal from the Ceutralia colliery. 2. As to John R. Blackiston’s share of profits in the government contract made by Joseph C. Wright. 3. As to the damages paid by the Lehigh Valley Railroad Company; and 4. As to the $2800 received from Columbia County on account of money advanced for *353county purposes.” Both parties excepted, the alleged error of the Master “ in reporting that J. R. Blackiston is entitled to an account of the damages paid by the Lehigh Valley Railroad Company to J. M. Freck,” being the subject of the fourteenth exception filed by the plaintiff. This exception was sustained by the Court, the other exceptions of the plaintiff were overruled, the exceptions of the defendant were sustained, and the bill was dismissed. No exception had been filed to the report of the Master that the money received from Columbia County should be accounted for. This omission was caused by the fact that this item was not contained in the first printed'form of decree appended to the report, and while it was in the record, it was not presented to the Court, and was overlooked by the plaintiff’s counsel. The apparent anomaly of a decree dismissing the bill when there was an admitted subject-matter of account in the case, is thus explained. On the argument here, the item was properly treated as if it had been excepted to and the exception overruled.

The question as to the liability of the defendant for his proportion of the commissions of the firm of Blackiston, Graeff & Co., and for his share of the profits in the government contract made by Joseph C. Wright, cannot now be raised. The finding of the Master as to those questions was for the plaintiff, and this appeal having been taken by him, those items only can be considered for which he was found to be accountable.

A' partnership was formed between 'these parties under the name of J. M. Freck & Co., on the 18th of August, 1862, for the working of a colliery at Centraba, in Columbia County, and the sale of coal. On the 21st of February, 1866, a proposition was made' by the defendant for the sale to the plaintiff of his “ interest in the Centraba colliery, and in all the material, property,fixtures, machinery, tools and engines, thereto belonging, and all property, real and personal, therewith connected.” This proposition was accepted, and the price and terms were fixed by a subsequent agreement made on the 28th of February, 1866, when the partnership'was formally dissolved. At that time, an action brought by the firm was pending against the Lehigh and Mahauoy Railroad Company, for damages caused by the location and construction of the company’s road over the lands leased for the purposes of the colliery. When the hearing was had before the Master, the sum of $10.000 on account of this claim had been paid by the Lehigh Valley Railroad Company to the plaintiff and was in his hands. For this money the Master held the plaintiff liable to account. The injury had been done *354during the partnership. It became a personal claim, in favor of the members of the firm, it is true, but in no manner attached to, or connected with, the colliery property. When the sale was made, therefore, on the 28th of February, 1866, this demand formed no part of the colliery, or of “the material,property, fixtures, machinery, tools or engines, thereto belonging.” It had become a personal debt accrued to the parties during the partnership as entirely as if the amount of it had been secured by a note or bond. In the Schuylkill Navigation Company *v.*Thoburn, 7 S. & R., 421, where land had been flooded by the erection of a dam by the company for the purposes of their canal, Chief Justice Gibson said: “ The material inquiry is as to what point of time the jury were to estimate the damage as having been suffered? Indisputably at the time when the injury complained of was complete, which was the moment when the dam was finished, or rather when the obstruction, by swelling the water, permanently produced its most injurious consequences.” It was held in the Schuylkill and Susquehanna Navigation *¶.*Decker, 2 Watts, 343, that damages caused by the location of a canal were in compensation of an injury in the nature of a trespass, and did not pass by a conveyance of land. Zimmerman *v.*The Union Canal Company, 1 W. & S., 346, was a proceeding to rocover damages for injuries to the land of the plaintiff while it was in the possession of a former owner. In the opinion of the President of the Common Pleas, which was adopted by this Court, it was said: “Here, Godfried Zimmerman owned the land at the time the alleged injuries were committed. The obstruction, if it injured the premises, injured his freehold. It lessened its value. If he subsequently sold it, the loss, occasioned by the deterioration of the value of the land was his. A conveyance of the land, with its appurtenances, would not convey to the vendee a right of action for injuries previously committed on the land.” These authorities, which have been uniformly followed, pi’ove the ruling of the Master, that the defendant is entitled to his share of these damages, to have been accurate.

The finding of the Master that the plaintiff was liable to account for the $2800 received by him on the Columbia County bond, was also justified by the facts reported. At the time of the dissolution this money was due from the county to the firm. It was subsequently paid to the plaintiff. On, the 11th of April, 1867, an adjustment was made between the parties of the balance of a mortgage debt due by the plaintiff to the defendant. A credit to the plaintiff of $7758.34, in a balance-sheet made out on the 13th of August, 1866, entered into that adjustment. From the *355amount of this credit two items', one being “ one-half of investment account uncollected,” amounting to $1400, and the other being “one-half of J. C. Van Camp’s bill,” amounting to $43.86, were deducted, and the residue, $63i4.88, was applied towards the payment of the mortgage. It was suggested on the argument that the adjustment thus made showed the allowance to the defendant of one-half of the claim against the county. This would have been so if the credit to the plaintiff in the balance-sheet had represented cash. But the debits consisted of cash assets in the hands of Blackiston & Co., amounting to $10,738.35, of the item called “ investment accounts,” $2800, and of the “J. C. Van Camp” item, $87.72, making an aggregate of $13,626.07. The credit side of the balance-sheet showed J. M. Freck to be entitled to $7758.34, and J. R. Blackiston to be entitled to $5867.73, making up the same aggregate. When, therefore, the deduction of the sums of $1400 and $43.86, was made from the amount of the plaintiff’s credit, it was simply withdrawing these items from the balance-sheet entirely, and leaving it to exhibit the adjustment of the realized and available cash means which the parties held. While the amount appeared to be $13,626.07, there was really only the sum of $10,738.35 to be divided. The reduction that was made when the mortgage was satisfied effected a settlement of the assets that was divisible, and left the outstanding securities in the hands of the plaintiff’ to be accounted for after their collection.

Decree reversed, and record remitted for further proceedings in the cause to the Court of Common Pleas of the City and County of Philadelphia.*

*

 For the final decree, see Freck’s Appeal,'2 Norris’s Reports, 474.