Opinion
08-03-1888
DIGNAN v. DIGNAN et al.
James S. Atkin, for complainant. W. D. Holt, for defendants.
Bill by Thomas Dignan against James W. Dignan and others.
James S. Atkin, for complainant. W. D. Holt, for defendants.
BIRD, V. C. This controversy between Thomas, and James, his father, is respecting the rights of each in a partnership transaction which begun in 1880, and ended in 1883. Thomas, by his bill, claims the right to an account from his father. His father answers, and says that, at the time of the dissolution, there was an agreement made between them in and by which he undertook to satisfy all the debts of the firm in case Thomas would consent to a dissolution, and surrender all his interests in the concern, which he says Thomas consented to do. In my judgment, the proofs offered by the father do not go far enough to satisfy the court that an accounting ought not to be had. Let us look at the father's statement, and then consider whether or not it is not quite clear that the son ought not to be bound by the alleged settlement. The father says that on the —— day of August, 1883, he invited Thomas into the office, and then asked him to consent to a dissolution, to which he immediately consented, and that at the same time Thomas signed a writing to the effect that a dissolution had taken place. A brother of Thomas, whose name had been in the concern, but who had no real interest therein, also signed the consent to dissolution. After these two had thus signed, the father signed. The father says that then Thomas agreed to surrender all his interests in the partnership to him (the father) upon the promise on his part to discharge all the debts of the concern. From the father's own statement there was not the slightest consideration given to this important matter by Thomas. I say "important;" for it appears that Thomas had for years been a hard-working mechanic, and because of that fact his father had persuaded him to enter into copartnership with him, and that it was by the skill and good workmanship of Thomas that large gains had come to the concern. It is very observable that it was on these accounts that the father was, in the first place, desirous of securing the aid of Thomas as a partner. Although the habits of Thomas became dissipated to such an extent as to oblige his father to ask for a dissolution, yet it is very clear that Thomas did a great deal to enlarge the business carried on by the concern. Besides this, when Thomas was taken into the firm, in 1880, he borrowed $2,050 of his mother-in-law, and advanced it to the firm as so much capital. This sum remained there up to the time of dissolution, so far as appears, unless it can be shown that an account on the firm books against Thomas should be set off against his loan to the capital. But, as the matters now stand, there has not been the slightest accounting of this $2,050 by the father to the son. The father says that he promised to pay all the debts of the firm. Up to this time he has not paid the son this $2,050, nor any part thereof, unless it has been partially paid by the account to which reference has been made. But that account remains open until now; so that, if a balance were struck, after giving Thomas credit for the $2,050, over $1,000 would be due to Thomas. Now, are we not forcedto conclude that, whatever Thomas did consent to, he so consented without giving the subject-matter the slightest thought or consideration. Is it not perfectly apparent that Thomas was under some unhappy influences or under some superior power, and that because thereof he ought to be released from any obligation then made, unless superior equities have arisen? Another fact is very significant. In one of the answers to the bill of complaint, the father most directly declares that there never had been a settlement. This answer was filed many days after the time (60 days) allowed by law for that purpose; and it is well established that the father fully understood the contents of that answer. That answer was afterwards ordered to be taken from the files; and subsequent to that it was that the answer under which the father now seeks to make his defense was placed on the records of the court. In this last answer he declares that there was a settlement, and because thereof claims that any further accounting may justly be avoided by him. Now, at this stage of the case, I am not called upon to determine which of the father's statements more nearly represents the truth. It is sufficient to say that the two statements, taken together, cast enough doubt over the alleged settlement to warrant me in advising an accounting. Indeed, if there were no other material facts in the case, this alone would seem to make an accounting inevitable. And when to this is added the highly important fact that it was James, the father, who prepared the written consent to the dissolution, and who asked Thomas to sign it, and, after he had signed, to surrender all his interests without any accounting,—I say when it is considered that the relation of parent and child existed, as well as that of partners, and it was the father who led the son at his will, in this instance at least, then, by all the rules and practices of this court, an order for an accounting becomes quite imperative. Again, it is said that the indebtedness of the concern may have been very large, and that the burden which the father says he assumed in promising to pay it may have been many times greater than the obligation of the firm to Thomas; and, if that be so, why should the court go through the forms of an accounting? Of course, the inquiry would have great pertinency, were there a single fact for it to rest upon. No proof has been offered to show that debts of any considerable amount existed at the time of the dissolution. I will advise a reference to a master, whose duty it will be to state an account between these parties.