, 1872-01-22

D. s. Baker ct dls.,
Defendants in Error.
From First Judicial District.
The facts involved in this case, the
statement of which may be necessary to
the understanding of the points on which
we base our decision. are briefly these:
Some time in June, A. D. 1869, D. S
Baker, ct, ais. defendants in error but
plaintiffs in the District Court. entered
into contract of co-partnership with B
L. Stevens, plaintiff in error. The sub.
ject matter of the copartnership was o
band Of cattle, known as the Nodi cattle
Defendants in error agreed to furnish,
and did furnish, all the capital of said
copartnership. Plaintiff in error agreed
to furnish, and did furnish, his personal
services and skill in the purchase, herd.
ing, driving and sale of said cattle.
Plaintiff in error agreed that defendants
in error should from the proceeds of the
sale of said cattle, first have their mon
ey or capital paid back to them, togeth-
er with one and one-half per cent. inter-
est per month thereon from time of fur
nishing of same, provided proceeds OF
enterprise amounted to that much-if
more, surplus was to be equally divided
between plaintiff in error and defend
ants in error; if there should be loss,
it should be borne in the same manner
as profits were to be shared.
The cattle were purchased and driven
from Walla Walla county to the State of
Nevada, and there sold by plaintiff in
error. Most of the purchase money was
returned to defendants in error. Plain
tiff claimed that there was loss in the
enterprise and that no more money was
due defendants in error, while defend
ants in error claimed that on an honest
and fair settlement of the copartnership
accounts there would esbetween three
and four thousand dollars due them.
An action of Assumpsit was COM
menced in the District Court of the first
Judicial District, holding terms at the
city of Walla Walla, to recover said al
leged balances. There was jury trial;
verdict for the plaintiff, and judg-
ment of the Court as conclusion of law
upon that verdict.
The original complaint among other
things. alleged settlement of the part
nership Indebtedness, an accounting to-
gether. the ascertainment of balance
due the plaintiffs and promise to pay
that balance. All of these allegations
were specifically denied by defendant s
answer. For some reason not disclosed
by the record, plaintiffs obtained leave
to file and did file an amended COM
plant. In this amended complaint all
of the allegations mentioned above were
omitted. The answer to the amended
complaint set up the copartnership,
outstanding Indebtedness, and that there
had been no accounting together, and
no balance due either party.
The principal question raised here on
the above statement of facts, is: Did the
amended complaint state facts constitu-
ting cause of action at law? Or. Ill
other words, had Court of law jnris-
diction over the facts stated IN the
amended complaint? We think not.
The rule is almost universal that one
partner cannot sue his copartner at law
without alleging and proving settle
ment of the partnership Indebtedness
the accounting together of the copart-
ners, and the ascertainment of a balance,
and promise, either express or implied,
to pay that balance. Cal. 84-7, Rus
sell VS.. Ford; Cal. 800, Nugent VS..
Drake; 2 Gaines, 293, Casey VS.. Brush
IL johnson, 4O1; IA idem, 318; II idem,
"a; wend., 534; Metcalf on Contracts,
1901; Story on Partnership, 221; l
Wash. C. C. R., 435; 2 Cranch G. G. K.
sol; idem, 154.
There is conflict of authorities as to
whether the law will imply promise to
pay simply from the statement of an
account between partners and the ascer-
tainment of balance due one or more
of them. In this case there was no ac-
counting together, and hence no balance
found; but we state the proposition
broadly above because warranted by the
record; not meaning, however, to decide
whether the law would imply a promise
or not. See Met. on Contracts, 1872.
The rule in Massachusetts, is different
from the general rule stated above. The
Courts in that State, formerly at least,
had no equity powers in matters of co.
partnership, and the action of Assump.
sit was maintainable without the allega-
ton that the parties had accounted to.
gether, and that a balance was found
due one or more of them. Sd Pick. 420
4 Met. $50; 1S Pick. 315; IA Allen. GO.
In that State the rule adopted by the
Courts was matter of necessity to pre-
vent injustice. The Court had power te
appoint Auditors to take the account
between the partners, to whose repor
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