#### Isham Henderson *v.*William J. Heady. William J. Heady *v.*Isham Henderson.

Partnership — Discontinuance by Acquiescence in other Dealings.

The acquiescence of one partner in acts by the other, which conduced to prove a dissolution of a former partnership, will bar any recovery of a share of profits made in all transactions subsequent to the alleged dissolution.

Partnership — Profits—Proof as to, etc.

In the absence of definite proof as to the specific purchase price of horses for a partnership, which had been formed to funish horses to the Government, it is sufficient to average the whole upon a basis of what the evidence shows was paid for 'a portion of'the stock.

APPEAL EROM LOUISVILLE CHANCERY COURT.

November 27, 1867.

These parties entered into a contract to buy horses, to be sold to the United States Government, to be furnished in lots of one hundred at a time. A contract had previously been made by Henderson with the Government, whereby, amongst other conditions, the horses were to be inspected, and such as were accepted, to be paid for at $96 each. Henderson was to furnish the funds necessary to buy the horses and Heady was to attend to the buying, delivering, etc. Up to July 8th, 1862, 479 head had been purchased, and on that day, Heady retired from the partnership. The averments of the petition were that Heady owned a two-fifth interest in the partnership, but in making up his report, the commissioner allowed and rendered his final report upon a one-half basis. In the commissioner’s final report, he showed sales to and receipts from the government of $43,104 up to July 21, 1862, and also receipt of $3,312.50 from the sale of 30 head, at auction, which it seems had been rejected. All of this fund went into the hands of Henderson. He was credited with cash advanced $20,211.50, and payment for 244 head at $80 each, average price, no specific proof being offered for the actual purchase price of every animal, and was also allowed sundry expenses necessary to the conducting of *487tbe business, making a total of $41,381.05, showing a balance of profit of $3,035.45. Tbe petitioner alleges that bis retirement from tbe partnership was brought about by tbe reputed sale by Henderson of tbe Government contract to one Gaslin, but that tbe transfer was made to defraud him of bis share of tbe profits, Henderson, without rendering an acounting, informing him that they bad lost considerable money by tbe transactions, all of which is denied in tbe answer. From a judgment for an equal division of tbe profits, defendant appeals.

*Thompson, for appellant. Caldwell, for appellee.*

OPINION OF THE COURT

by Judge Robertson :

Tbe pleadings and facts are so confused and obscure, in this case, as to leave tbe judicial mind in vexatious doubt as to tbe *precise*rights of tbe parties. We are, however, satisfied that Heady, if profits were made, is entitled to some portion of them. But whether or not be concurred in Henderson’s transfer, when it purports to have been made, or whether or not tbe transfer was merely ostensible and Henderson was still tbe beneficial party, Heady soon apparently acquiesced and ceased to act as partner.

On this basis tbe commissioner’s last report is very able and seems to approximate tbe truth as nearly as tbe chaotic record will enable any enlightened and impartial mind to reach it.

We cannot, therefore, decide that there is any available error in tbe reported amount of profits of which Heady is entitled to a share. And consequently, so far tbe chancellor’s confirmation of tbe report is approved.

But it seems to this court that tbe chancellor erred in adjudging to Heady one-half, instead of two-fifths which only his petition claimed and which the record strongly tends to prove as his conventional portion.

Wherefore, for this error alone, the judgment is reversed, and the cause remanded for a judgment conformable with this opinion.