#### Drew vs. Ferson.

Pabteebship : *When one partner can maintain action against another.*

1. Action at law will not lie, *by*one partner against the other for services rendered or money disbursed in a particular partnership transaction, there being no evidence that the partnership affairs have been settled and a balance struck.

2. It is a general rule, that a partner is not entitled to compensation for his personal services in the business of the partnership.

APPEAL from the Circuit Court for *Winnebago*County.

Action (commenced before a justice of the peace) to recover for services of the plaintiff in defending a suit brought by one Smith against the defendant and the plaintiff, and for money expended by the plaintiff in carrying on the defense, and in paying the judgment recovered in the action; the complaint alleging that the services were performed and moneys expended and paid at the request of the defendant, and that he promised to pay the plaintiff* therefor. Answer: a general denial; and that the alleged causes of action arose out of transactions between the plaintiff and defendant as partners. On the trial in the circuit court, plaintiff gave in evidence the judgment roll in the suit of *652Smith *vs.*C. C. Drew and J. L. Ferson, by which it appeared that judgment was rendered in favor of the plaintiff in that action against the defendants in January, 1866, for $76.00, on a claim against them as partners, accruing in 1862 and 1863; that *Ferson*paid $38 on the judgment, and that *Drew*paid the balance. *Drew*testified on his own behalf, that *Ferson*requested him to defend the suit brought by Smith; that his time spent and money disbursed in the defense amounted to $187.16 (of which he claimed one-half from the defendant); that he and the defendant were partners in 1862 and 1863, in the lumbering business; that the suit of Smith against them was commenced in December, 1865; that there had been before that time an adjustment of their partnership matters in writing; and that *“*the suit of Smith was subsequent to that arbitration.” He also introduced in evidence two instruments in writing. The first was an agreement signed by *Drew*and *Ferson,*dated July 25, 1863, by which, after reciting that the parties had been engaged in the lumbering business as partners, and had then on hand a lot of pine logs, and that certain differences had arisen between them in their business, it was agreed that *Drew*was to have all the logs marked “F. X. I.” and was to pay all the expenses connected with them, and $50 besides, for *Ferson’s*interest in them; that all the other logs, marked “ D. F. I.” were to be equally divided between the parties, each to pay one-half of the expenses of getting them out, running and rafting them; that *Ferson*was also to pay *Drew*$1 per *M*for the stumpage on his *[Ferson’s)*half of said logs; that as soon as said logs were divided, the parties should settle all matters of account between them relative to the logs last mentioned, upon' a certain specified basis; and that if the parties could not agree upon any matters connected with such settlement, they would deliver to John Hancock (whom they thereby appointed *653
      *“*an arbitrator to settle tbeir differences relative to tbe said logs last above mentioned,”) all books and papers “ relative to tbeir deal and accounts in tbe getting out of said logs, and connected in any manner with tbe logs last above mentioned,” and would abide by bis award. Tbe other paper was signed by John Hancock, dated September 23d, 1868, in wbicb, after reciting said submission, be determines tbe gross amount of expenses incurred by eacb of tbe parties in tbeir lumbering business, and awards that there was due from *Ferson*to *Drew,*upon tbe basis of their agreement made on tbe 25th day of July previous, $457.94; tbe award closing as follows: “ If any of tbe partnership accounts embraced in said *Drew*and *Ferson’s*accounts that have been submitted to said arbitrator as paid, shall be found to -be unpaid, said accounts shall be paid in full by tbe party submitting them as paid; and all expenses not submitted, or rather that have been incurred at tbe boom upon tbe undivided portion of ‘ I). E. I.’ logs, are to be borne equally by said parties; and all boom or other expenses accrued or accruing on tbe ‘E. X. I.’ logs are to be paid in full by said *Drew.”*Upon tbe close of tbe plaintiff’s testimony, a motion for a nonsuit was overruled. Tbe defendant then testified that be never requested tbe plaintiff to defend the suit of Smith and never promised to pay him for defending it. The circuit judge instructed tbe jury, 1. “ That tbe plaintiff is entitled to recover for bis own time and sendees a reasonable compensation, if tbe jury find they were rendered at tbe special request of the defendant, and not other-erwise.” 2. “ That if all business of tbe co-partnership of *Drew Ferson*bad been settled, except such as grew out of Smith’s suit and its defense, and there was no other matter to be adjusted between them, an action at law might be maintained against *Ferson.*for bis share of tbe expenses of defending tbe suit, as well as for bis share of tbe judg*654ment in that case.” 3. “ That if tbe jury find tbat tbe defendant requested plaintiff to defend tbe suit, tbey can infer an implied promise by tbe defendant to pay tberefor.” Verdict and judgment for plaintiff for $53; and defendant appealed.

*Gabe*Bouck, for appellant.

*G. Coolbaugh,*for respondent:

Before tbis action was' commenced, tbe parties bad submitted all tbeir differences to arbitration; tbe arbitrator bad made bis award; and all tbeir partnership affairs bad been adjusted, except Smith’s claim. Tbey disputed tbe claim, and *Ferson*requested *Brew*to defend it, which be did, spending time and money, to recover for which tbis action is brought. One partner can sue another at law, where money has been paid and services rendered on request ;■ or where there has been a dissolution and settlement of tbe partnership affairs, and tbe controversy relates to a single transaction, as in tbis case. 1 East, 20; 17 Wend., 60; 25 id., 450; 4 Corns.,. 486; Parsons on Part., 272, 273, and notes, 275, 284; Collyer on Part., §§ 269-87; 23 Barb.,184; 9Wend., 424. Courts do not send parties into chancery where tbe controversy is small and can be settled as well in a court of law. 5 Wend., 274. If *Ferson*requested *Brew*to defend tbe suit, tbe law implies a promise to pay. Archb. N. P., 27, 57.

Cole, J.

It appears tbat tbe suit of *Smith v. Drew*and Ferson was upon a claim against them as partners. Tbis is shown by tbe judgment roll in tbat suit, which was introduced by tbe plaintiff, and also by tbe plaintiff’s own testimony. The subject matter of tbat suit, then, is a part of tbe unsettled matters of tbe partnership. It is claimed tbat tbe whole partnership business has been adjusted and closed, tbe Smith claim only excepted. We do not see any evidence in tbe case tbat tbe partnership affairs have been settled. *655The two exhibits offered in evidence do not show this. "Whether the plaintiff can claim compensation for personal services rendered in the- defense of the Smith suit, when the partnership affairs are settled, is a question we need not consider. It is quite obvious that it was as much his duty to look after that suit as it was that of the other partner. And it is a general rule, that a partner is not entitled to compensation for his personal services in the business of the partnership. It appears to us that the plaintiff has mistaken his remedy. He should have commenced his suit in equity for a final settlement of the partnership matters. The non-suit should have been granted; for it was clear, upon the evidence introduced by the plaintiff, that an action at law could not be maintained.

*By the Court.*— The judgment of the circuit court is reversed, and a new trial awarded.