#### Bernard Macke *v.*Henry Rolfe’s Admx.

Partnership — Death of Partner — Inventory of Stock — Surviving Part- • ner — Settlement of Partnership.

Upon the death of one partner it is the duty of the survivor to cause a full and fair inventory of all the stock in trade to be made, by competent men, in a reasonable time thereafter, and to cause to be kept a fair and correct account of all transactions connected with the firm’s business, from the death of his partner until the partnership is settled.

APPEAL EROM KENTON CIRCUIT COURT.

March 7, 1867.

Opinion oe the Court by

Judge Peters:

The difficulty iu adjusting and settling the business of the late firm of Rolfe *&*Macke has been magnified, if not wholly produced, by the failure of appellant, the surviving partner, to cause a full and fair inventory of all the stock in trade and partnership effects to be made out by competent men in convenient and reasonable, time after the death of Bolfe, and to cause to be kept a fair and correct account of all transactions connected with the firm business, from the death of his partner until he sold out,

The failure of appellant to discharge a duty so obviously necessary, and to present an exhibit with his answer of the whole business of the firm, make it the more imperative on him to explain by satisfactory evidence all he has done touching this business. •

After a careful examination of the pleadings and proof, we are satisfied that no injustice has been done appellant, - and the judgment is, therefore, affirmed on the original appeal.

On the cross-appeal we have had more difficulty; it seems from the proof that appellant should be charged, as was done by the court below, with $1,300 as the price for which the stock and effects pertaining to the mineral water brand of the firm were sold, subject to the credits which were given. And although Dressman proves that appellant told him that he had sold the ale branch of the business to Thoss for $850, and that he himself offered to take it at that price, still, in view of the other evidence *497in the ease of the actual value of that branch of the business, perhaps injustice might be done appellant to charge him more than he was charged by the court below, viz.: $550, subject to the credits allowed, making the balance of $554.25 due the appellee as adjudged, after deducting the $100 paid to her and $50 paid to Myres, which intestate owed him at his death. And thus far the judgment so far is approved on the cross-appeal. But it appears to us that it was prejudicial to cross-appellant in omitting to charge appellant for sales made by him from the death of his partner until the business was closed by a sale in cross of the stock, etc. Wanzel proves that the business was, in fact, suspended but two days by the death of Rolfe, and after the expiration of two days on that occasion, appellant resumed the busiiu ss, and continued making his daily sales as before until witness purchased him out. Whatever stock of the firm was then on hand we must assume was consumed in manufacturing the articles for sale; the house was rented by the firm in which the business was conducted, and appellant lived in a part of it. The book of sales or cash-book of said firm is in the record, and by the agreement of the pai’ties is to be considered as part thereof; that book shows the amoxxnt of sales up to the 24th of September, 1864, the day most likely on which Rolfe died. Why a daily account of sales was not continued after that pexdod until the business was closed out is xxot shown, and no account of these sales was taken by the court below. The book of sales will furnish some criterion ixx the absence of other proof of a more satisfactory character by which to be guided in making up the account of sales from the death of Rolfe to the sale to Wanzel & Thoss; appellee was certainly entitled to something for the use of materials, the machinery, wagons, ■etc., if for nothing else, during this period. But as appellant continxxed the business from the death of his partner until some time in January following, an account for that time should have been taken.

Wherefore, the judgment is reversed on the cross-appeal, and the cause remanded with directions to refer the case to a master to take proof, and to make out an account of sales after the death of Rolfe, the material belonging to the firm then on hand, what was paid out to keep up the stock, and also allow appellant a reasonable compensat-ioix for an expexxditure of money for extra labor in conducting the bxxsixxess caused by the death of Rolfe, if any such *498expenditure was made, and report to the court, and for further proceedings consistent with this opinion.

Carlisle, for Appellant.

Rawhins, for Appellee.